New York Eminent Domain - Release: 6-24-2010

 

New York’s High Court Slams Door On Property Owners in the Empire State 


WEB RELEASE: June 24, 2010
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John E. Kramer
(703) 682-9320
[Property Rights]


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, available at www.ij.org/BuildingEmpires.

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 copy of that report is available at:  http://www.ij.org/3045.

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.”


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