December 9, 2009

Big Blighters

After Kelo v. City of New London, the 2005 decision in which the U.S. Supreme Court approved the forcible transfer of property from one private owner to another in the name of “economic development,” 43 states passed reforms that were supposed to curb eminent domain abuses. But most states still allow condemnation of property deemed to be “blighted,” and many of them define that condition so broadly that it has become a synonym for “coveted,” as illustrated by two recent New York cases.

In 1954, when the Supreme Court declared that eliminating blight counts as a “public use” under the Fifth Amendment and that property may be transferred to other private owners for that purpose, the case involved a Washington, D.C., neighborhood where two-thirds of the dwellings were considered “beyond repair”; most lacked central heating, indoor toilets and bathrooms; and some were located in alleys. As part of “a comprehensive plan” aimed at alleviating these “miserable and disreputable housing conditions,” the Court ruled, it was acceptable to condemn a department store that was itself in good condition.

Two decades later, the New York State Court of Appeals noted that blight was not just for slums anymore. “It has become clear,” the court said in 1975, “that the areas eligible for such renewal are not limited to ‘slums’ as that term was formerly applied, and that, among other things, economic underdevelopment and stagnation are also threats to the public sufficient to make their removal cognizable as a public purpose.”

Although New York courts could interpret the state constitution as imposing more restrictions on eminent domain than the U.S. Constitution does, this generous blight standard is hard to distinguish from the open-ended development rationale endorsed in Kelo, under which no one’s property is secure if politicians can imagine a better use for it.

It is therefore not surprising that the Court of Appeals last month approved developer Bruce Ratner’s use of eminent domain to eliminate what the lone dissenter, Judge Robert Smith, called “a normal and pleasant residential community” in Brooklyn.

The neighborhood stands in the way of Ratner’s grandiose, publicly subsidized Atlantic Yards project, which is supposed to include an arena for his basketball team as well as luxury apartments and commercial space.

“It is clear to me from the record,” Smith wrote, “that the elimination of blight, in the sense of substandard and unsanitary conditions that present a danger to public safety, was never the bona fide purpose of the development.”

Last week a lower appeals court reached the same conclusion in a case involving Columbia University’s expansion into the Manhattanville section of Harlem. As in the Atlantic Yards case, the Empire State Development Corp., the authority empowered to use eminent domain, went looking for “characteristics that demonstrate blight conditions” so it could reach a predetermined conclusion that condemnation was justified.

The result, said the court, was “a preposterous summary of building and sidewalk defects” that could be found in “virtually every neighborhood in the five boroughs.” It concluded that the blight designation was “mere sophistry.”

Refreshing as this rebuke is, it is likely to be reversed by the Court of Appeals, which in the Atlantic Yards case showed it is not inclined to second-guess development officials’ blight judgments. “It may be that the bar has now been set too low,” the court that set the bar conceded, “that what will now pass as ‘blight,’ as that expression has come to be understood and used by political appointees to public corporations relying upon studies paid for by developers, should not be permitted to constitute a predicate for the invasion of property rights and the razing of homes and businesses.”

But if so, the judges said, don’t expect us to do anything about it – the solution will have to come from legislators. I guess it will, given the unjustified deference that New York’s highest court shows toward the self-interested assessments of developers and their allies.


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