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Daniel Goldstein

Daniel Goldstein

Posted: October 27, 2009 05:29 PM

The Specter of Condemnation: What Isn't Public Use?

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It is not difficult for a layperson, an everyday American, to understand what “public use” means in the context of one of the state’s most extreme powers—the power to take your property by eminent domain.

What’s a public use? People know it when they see it.

That’s why post-Kelo polling showed extreme antipathy, across the political spectrum, for the 2005 Supreme Court ruling, which, on the face of it very well reaches the conclusion that as long as some public benefit is described in the name the of eminent domain…then government seizure of private property is A-Okay.

Since Kelo 43 states have reformed their eminent domain laws. New York, as the Wall Street Journal so ironically put it, has been a holdout from those reforms. Notoriously dysfunctional Albany has barely put the issue on its radar. That’s why the first post-Kelo public use case to make it to New York State’s high court, which was argued on October 14th, is so important. Without legislative protections the court is the last place for New Yorkers to gain some semblance of assurance that their home is not just some placeholder ripe for plucking when the state thinks some “benefit” may accrue from its seizure.

As of now, though, there is basically no protection for property owners and tenants in New York. If a condemning authority, such as the Empire State Development Corporation, or New York City’s Economic Development Corporation, staples together enough pieces of paper that make speculative claims about some amorphous “public benefits”—then your home will become theirs to transfer to private developers for their enrichment.

Such is the case with the use of eminent domain for the Brooklyn Atlantic Yards project, which is what the Court is now considering.  If public use can mean public “benefit,” then it can literally mean whatever the state wants it to mean, and leads to the non-rhetorical question: What isn’t a public use?

Right now, the answer is unknown. We need some clarity. Most observers wouldn’t consider luxury condominiums and a privately owned basketball arena with lucrative naming rights accruing solely to the arena developer to be a public use.

During the October 14th oral argument on the Atlantic Yards case, Goldstein et al. v ESDC et al., there was the following key exchange between Judge Robert Smith and Philip Karmel, the attorney for the New York State.

Smith asked, “Is it the law of New York that if I own a house in an area that the government thinks could be improved, a perfectly nice house, it’s a clean house, nothing particularly wrong with the area, but it could be better, more vibrant, more dynamic businesses, is that enough for the government to [condemn and seize] the house?”

Karmel answered, “Under New York State constitutional law, yes, it is.”

So, is that really public use?

The Court of Appeals exchange is reminiscent of the most memorable exchange in the Kelo Supreme Court argument, now used as a touchstone for the perverted way in which eminent domain is abused across the country. Former Justice Sandra Day O’Connor asked, “For example, Motel 6 and the city thinks, well, if we had a Ritz-Carlton, we would have higher taxes. Now, is that okay?

City of New London Attorney Wesley Horton replied, much like Karmel, “Yes, Your Honor. That would be okay. I -- because otherwise you're in the position of drawing the line. I mean, there is, there is a limit. I mean – “

And that is the point. 

A line must be drawn, whether by the courts when the legislature is unresponsive, or by a functional legislature. If no line is drawn, then the Fifth Amendment of the Constitution, and the takings clause of New York’s Constitution—that private property can be taken for a “public use”—become dead letters.

When the Kelo Court’s ruling came down, O'Connor's blistering dissent concluded:

The Court rightfully admits, however, that the judiciary cannot get bogged down in predictive judgments about whether the public will actually be better off after a property transfer. In any event, this constraint has no realistic import. For who among us can say she already makes the most productive or attractive possible use of her property? The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.

Will that specter remain in New York when its high court rules, or will New York’s citizens regain reasonable protection from government theft of homes or businesses?

We’ll know soon.


You can watch the October 14th oral argument below: 

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