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

03/18/2010 05:12 am ET | Updated May 25, 2011

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.

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

43 states have reformed their eminent domain laws. New York, as the Wall Street
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

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.

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

the October 14th oral
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?”

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

So, is that really public use?

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?

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 – “

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

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

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.

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

know soon.


You can watch the October 14th oral argument below: