Thursday, June 24, 2010
The New York Court of Appeals today handed down its decision in Kaur v. New York State Urban Development Corp., the challenge to the government's use of eminent domain in conjunction with a Columbia University development project. To almost no one's surprise, the NY high court reversed the Appellate Division'sruling that the taking was unconstitutional. Especially since the Goldstien case (i.e., Atlantic Yards) came out last fall, solidifying the New York approach of Kelo-style deference to governmental assertions of economic development as consonant with the Public Use Clause.
And just yesterday I was blogging about how the incidence of economic development takings might be down due in part to the Kelo backlash! But this is New York, of course--one of just a handful of states that has not even passed any sort of anti-Kelo measure at all. I just read the Kaur decision; I expected the standard Kelo-style deference to legislative and executive officials to determine what things are in the public benefit (although I thought the Court rather passively accepted the argument that Columbia = education (nonprofit!) and education = good = constitutionally sufficient public benefit). But I was still a little surprised at the extent to which the Court seems to bend over backwards to disclaim any competence at all to evaluate the sufficiency of a "blight" determination by the government (which also gets to decide to use eminent domain). That's the rational basis test taken to its logical extreme.
Keith Hirokawa (Albany) and Patricia Salkin (Albany) recently posted their article Can Urban University Expansion and Sustainable Development Co-Exist? A Case Study in Progress on Columbia University, Fordham Urban Law Journal, Vol. 37 (2010). Their article provides a great overview of the background of the project and many of the land use issues involved. Ilya Somin has a good early analysis of the decision here, with some further analysis of the blight issue in the case. I do hope that the Columbia project succeeds in enhancing the neighborhood with walkable mixed-use and economically successful community development, where other high-profile comprehensive economic development takings have failed.