Sunday, November 1, 2009

Institute for Justice report on eminent domain in New York & the Goldstein case

The Institute for Justice, the libertarian pro-property rights group that famously represented Susette Kelo, has issued a report called Building Empires, Destroying Homes: Eminent Domain Abuse in New York.  From the intro:

New York is perhaps the worst state in the nation when it comes to eminent domain abuse—the forcible acquisition of private property by the government for private development. . . .

This report is designed to serve as a resource to anyone trying to understand the complex and byzantine laws that allow eminent domain abuse to happen and the issues surrounding the government’s power to take property. It presents both the law and the stories that make up New York’s reprehensible history of eminent domain abuse, but it also suggests solutions the courts and the Legislature can implement to ensure everyone keeps what is rightfully theirs to own.

The report comes out as the New York Court of Appeals is considering the high-profile case Goldstein v. New York State Urban Development Corporation (scroll down to docket number 178).  Oral arguments were last month.  This is the case about the use of eminent domain by the corporation for the 22-acre Atlantic Yards development in Brooklyn, which is proposed to have a variety of uses centered around a new arena for the New Jersey (for now) Nets basketball team, owned by project developer Bruce Ratner.  Property owners are challenging the taking under the public use clause of the state constitution.  As Professor Ilya Somin has noted, New York is one of only seven states that has not enacted any sort of post-Kelo reform (see his article The Limits of Backlash: Assessing the Political Response to Kelo).  Prof. Somin expressed doubt at the Volokh Conspiracy about any chance that the Goldstein decision will result in any scaling back of economic development takings under state law.

The Schenectady Gazette has a front-page article on the report that unfortunately is behind a subscription wall (thanks to Patrick Festa for the pointer).  The article quotes Albany Prof. Patricia Salkin, one of the leading experts on land use and state government law (as well as editor of Law of the Land), as being critical of the IJ report, and as also predicting that the Court will uphold the exercise of eminent domain in Atlantic Yards. 

Salkin said that over time, the meaning of public use has expanded, and now, projects that are not owned by a public entity but have some sort of public purpose, such as generating tax revenue, removing blight and creating jobs, are valid uses of eminent domain law.

Sounds about right in light of Kelo.  But there may be some other issues that will come out of the decision:

Salkin attended the oral arguments in the Goldstein case and said the judges indicated that the issue of whether eminent domain can be used for private projects has been settled.  But other issues are likely to be explored, including the question of whether Atlantic Yards provides the proper amount of affordable housing, required because the project is in a designated renewal area.

Perhaps like Kelo itself, the Goldstein decision will not be earth-shattering doctrinally, but it is certainly bringing a lot of attention back to eminent domain.

Matt Festa

Affordable Housing, Development, Eminent Domain, Property Rights, Takings | Permalink

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