FOR IMMEDIATE RELEASE: June  24, 2010

Arlington, Va.— If you own a piece of property in New York State, you won’t like today’s ruling by the state’s high court.

The New York Court of Appeals—that state’s highest court—today overturned a lower court’s ruling that had blocked the New York State Urban Development Corporation from using eminent domain to take property away from a group of small-business owners in upper Manhattan and turn it over to Columbia University for private development.  Today’s decision comes on the heels of the court’s decision last year in Goldstein v. Urban Development Corporation, which allowed homes and businesses in Brooklyn to be turned over to wealthy developer Bruce Ratner to build luxury condominiums and a basketball arena.

“Once again, New York’s courts have completely ignored the abuse of power by government bureaucrats and politically connected developers,” said Dana Berliner, a senior attorney at the Institute for Justice.  IJ litigates nationwide against eminent domain abuse and filed a brief with the Court in favor of Harlem property owners.  “The sad truth is that, in New York, the government not only can hand your property over to private developers for no better reason than that it likes them more than it likes you, but it does so on an alarmingly regular basis.”  Last year, IJ catalogued the staggering rate at which properties are taken for private use in the Empire State in a report, Building Empires, Destroying Homes.

According to another report by the Institute for Justice on eminent domain abuse in New York, titled Empire State Eminent Domain:  Robin Hood in Reverse, eminent domain abuse disproportionately targets those who are less well-off and less educated, as well as ethnic and racial minorities—populations least able to fight back and thus most in need of protection from abuse. In New York, more than elsewhere in the country, this means taking from the poor to give to the rich.

A lower court had previously refused to allow the condemnations to go forward, noting that the state agency’s assertion that it was taking the properties to eliminate “blight” was clearly nothing but a pretext for using government power to further Columbia’s pre-existing expansion plans.  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.
   
Associate Judge Robert S. Smith concurred in the result, noting that he was bound by the court’s earlier decision in the Goldstein case.  “The finding of ‘blight’ in this case seems to me strained and pretextual,” Judge Smith wrote, “but it is no more so than the comparable finding in Goldstein.”

“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.”

The New York opinion comes only one day after the fifth anniversary of the U.S. Supreme Court’s ruling in Kelo v. City of New London.  That opinion—which allowed the government to condemn homes in the name of “economic development”—spurred a national backlash, leading to legislative changes and court decisions providing property owners with greater protection in 43 states.  Political and judicial leaders in New York, however, have refused to reform their eminent domain laws, which are among the worst in the nation.  More information on the post-Kelo backlash is available at:  www.ij.org/KeloAt5.

“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.”

Over 60 property owners attended a Castle Coalition workshop last week, voicing their concerns over Ft. Worth’s plan to seize businesses to redirect the Trinity River to form a lake and bypass channel for “flood control.”  Bureaucrats plan to sell the new waterfront property and transfer it to private hands for mixed-use development projects.  Local activists see right through this scheme.

Despite their many attempts to hide this reality from the public, the U.S. Army Corps of Engineers—the ones who will be implementing the “flood control project”—listed redevelopment as one of the project goals.  The plan states, “The primary objective of the plan was to preserve the environmental quality of the river while enhancing the quality of life in the surrounding community.  Modifications to the floodway levees to provide enhanced public access were another objective of this plan.” [1]

Local residents explained at the workshop that the very area politicians claim to have flood problems has never flooded.  So why should they hand over their cherished properties, if the only true purpose is private development?

Christina Walsh, IJ’s director of activism and coalitions, spoke at the workshop, explaining the importance of grassroots activism.  She trained property owners how to become effective spokesmen against eminent domain, how to form coalitions, and the importance of working with the media.

Matt Miller, executive director of IJ’s Texas Chapter, educated attendees on eminent domain laws in Texas.  Texas earned a B- in the Castle Coalition’s 50 State Report Card.  Miller explained that Proposition 11, passed by voters in 2009, still leaves loopholes for politicians to abuse.

Several community leaders also attended the workshop, including Bob Lukeman.  He has been fighting the Trinity River Uptown project since its inception.  Not only has he outlined his reasons for opposition, but he has voluntarily developed maps and an alternative plan for “flood control” in Ft. Worth—a plan that does not involve eminent domain.  His website, citizenswhocare.net, details his thoughtful proposal.  

Now that local activists have the tools to fight eminent domain abuse, Ft. Worth bureaucrats should be shaking in their boots. Keep checking the Castle Coalition for updates on this exciting fight for property rights! 

[1]  Final Supplement No. 1 to the Final Environmental Impact Statement, http://www.swf.usace.army.mil/Pubdata/notices/CentralCity/ FSEIS_FortWorthCentralCity.pdf, at 23.