IJ's Testimony on Eminent Domain Reform in New York

On Tuesday, January 5, New York State Senator Bill Perkins held a hearing on eminent domain in New York: "Unconstitutional: What the Appellate Division’s Eminent Domain Ruling Means for the Columbia Expansion." You can download a copy of our testimony here. Regarding the Atlantic Yards and Columbia decisions:

Property owners across the state were met with a shocking decision that flew in the face of state high courts, legislatures, and public opinion nationwide. While the New York Court of Appeals did not go so far as to embrace the Kelo decision, it did find that the takings for Bruce Ratner constituted a “public use”—simply because the Empire State Development Corporation said the targeted area was “blighted.” Even though this blight determination was based on a study paid for by the would-be developer; and even though the study was not initiated until years after the Atlantic Yards project was announced; and even though the study relied on findings like “underutilization” (plainly put, the area could be put to a more profitable use, exactly like every other property in New York and across the country, since every property could theoretically make more money as something bigger and newer)—the Court absolved itself from its duty to determine the constitutionality of these abusive takings.

In his dissent, Judge Robert Smith excoriated the majority for abandoning its duty to critically examine the ESDC’s determinations: “The whole point of the public use limitation is to prevent takings even when a state agency deems them desirable. To let the agency itself determine when the public use requirement is satisfied is to make the agency a judge in its own cause. I think that it is we who should perform the role of judges, and that we should do so by deciding that the proposed taking in this case is not for public use.”

The majority itself was not shy in acknowledging the implications of its decision: “It may be that the bar has now been set too low—that what will now pass as ‘blight,’ as that expression has come to be understood and used by political appointees to public corporations relying upon studies paid for by developers, should not be permitted to constitute a predicate for the invasion of property rights and the razing of homes and businesses.” But the court concludes that it is up to you—the legislature—to prevent such abuses.

Where the New York Court of Appeals woefully failed, the Second Department of the New York Appellate Division gave New Yorkers cause for hope. When considering the expansion of Columbia University—an elite, private organization—into West Harlem, onto property the school did not own, the court found that the process employed by the ESDC (the same culprit in the Atlantic Yards case) “predetermined the unconstitutional outcome, was bereft of facts which established that the neighborhood in question was blighted, and ultimately precluded the petitioners from presenting a full record before either the ESDC or, ultimately, this Court.”

Undoubtedly, the ESDC will appeal this decision to the New York Court of Appeals. The high court will then have to squarely address issues in the Columbia situation identical to those posed in Atlantic Yards, but that were summarily ignored in its decision; for example, the fact that both blight studies were commissioned after the private development projects were announced. Unfortunately, given the Court of Appeals’ deference to local determinations of blight and public purpose—no matter how bereft of fact or evidence—and its blind eye to pretext, New Yorkers have lost hope that the highest protectors of the law in their state will fulfill their sworn duty to uphold the Constitution.

The time for legislative reform is now. The future of property rights in New York can not be left in the hands of judges who refuse to meaningfully review the exercise of the “despotic power.”