Reason Foundation

http://reason.org
http://reason.org/news/show/private-developers-have-no-rig

Reason Foundation

Private Developers Have No Right to My Home

It's time for New York's high court to protect homeowners.

Daniel Goldstein
October 13, 2009

Over six years ago Bruce Ratner—a top political contributor and law school friend of then Gov. George Pataki—asked Pataki to use eminent domain to seize 22 acres of prime Brooklyn real estate and hand them over for his Atlantic Yards development plan. By way of comparison, the Ground Zero site is 16 acres. The taxpayer-subsidized project would be 16 skyscrapers and a professional basketball arena for the New Jersey Nets team Ratner bought as leverage for the land grab (and just conditionally sold to Russia's richest oligarch, Mikhail Prokhorov).

These 22 acres happened to include my home and my neighbors' homes and businesses—a slice of an ethnically, racially, and economically diverse, mixed-use neighborhood undergoing steady, healthy growth.

On October 14th our landmark case challenging this abuse of eminent domain to enrich and enormously benefit a powerful and politically connected developer will be argued at the Court of Appeals—New York's high court. The oral argument and eventual ruling will be historic.

"Public use,” required for eminent domain, has come to mean something other than construction of roads, parks, hospitals, schools, railways, etc. It has transmogrified into some amorphous, highly speculative "public benefit" or "public purpose," which could be anything a developer with government "partners" declares it to be.

The Supreme Court's infamous 2005 Kelo ruling alerted many Americans to this perversion of the Fifth Amendment of the U.S. Constitution.

Kelo also awakened many state legislatures and courts. Forty-three states have made post-Kelo eminent domain reforms in order to return eminent domain closer to its original intent, and give meaningful security to homeowners that they're more than temporary placeholders for wealthy, well-connected developers.

New York's legislature is one of the seven that has not acted. Though they did put on an act. Hearings were held in both houses. But proposals for legislation never made it out of committee and after the immediate national post-Kelo uproar subsided, the legislature moved on to its regular, and notable, dysfunction.

So everyday New Yorkers have been left unprotected and undefended by our elected officials. With such a non-responsive legislature, the only place to turn has been the courts, the great equalizer. Thankfully, we have this showdown with the state's most powerful and abusive condemning authority—the Empire State Development Corporation.

New York's Constitution says that property can be taken for a "public use." Not a "public benefit" or "public purpose." No New York State Constitutional Convention or legislature has ever seen fit to change this language or amend it. "Public use" means "public use." But again and again New York has approved eminent domain condemnation for projects, such as Atlantic Yards, that benefit private entities at the public's expense—so not only are they not for "public use," they are not even for the "public benefit." It's time for this to stop.

When eminent domain is used in service of building a school, a railway, or a hospital, we know what we'll get. But when "economic development" is the justification, we have no idea what we'll get except for false hopes, false dreams, and happy talk, along with a land grab windfall for the developer and theft of homes.

In the case of Atlantic Yards the so-called "benefits" are illusory at best. No attempt has been made by the condemning authority or the lower court to weigh the public versus private benefits; meaning there has been no cost-benefit analysis of the project and no analysis of the developer's benefit. But it doesn't take a degree to see who gets the very short end of the stick.

Thirty-one months after Atlantic Yards was unveiled we learned, for the first time, that the "public benefit" of the project was the removal of "blight." But the proposed takings area was not "blighted" in 2003 no matter how permissive a definition of "blight" one may apply. That said, what now passes for "blight" bears no relationship to the slum problem encountered by the City in the 1930s, when eminent domain was utilized for “slum clearance.”

In the 1930s the people of this state and the Court of Appeals understood that slums posed an "extraordinary threat to public health and safety," and "are the breeding place of disease" where the "public evils, social and economic, of such conditions, are unquestioned and unquestionable."

Prospect Heights, where the project is proposed, is the antithesis of that description, as is nearly any other neighborhood in New York state. But when the state deems a neighborhood "blighted", and then takes it, just because there are some weeds, or sidewalk cracks, or something called underutilization, then all of us in New York are vulnerable to eminent domain abuse.

Calling the Atlantic Yards site "blighted" was an obvious post-hoc justification to enable eminent domain in a state where "blight" has been erroneously interpreted to mean whatever the state determines it to be. And if all the state has to argue to justify seizing properties is some speculative public "benefit" or "purpose"—based on some contrived "blight" declaration—then what exactly isn't a "public use"?

My co-plaintiffs and I are not asking for much. We're simply asking for the state's constitutional Public Use Clause to be applied, which, despite the cries of the vested interests, will not stymie development in New York City. If it is not applied, then today our homes can be seized in an abusive manner, but tomorrow it will be your home just because some politically connected, backroom-dealing rich guy can get his cronies to determine that his enrichment is somehow for the public's use.

Daniel Goldstein is the lead plaintiff on Goldstein et al. v. NYS Urban Development Corp (d/b/a Empire State Development Corp.) and a co-founder of Develop Don't Destroy Brooklyn, Inc. This column first appeared at Reason.com.



Print This