More on Eminent Domain in New York

Americans became more familiar with the government’s power and use of eminent domain following the 2005 Supreme Court decision in Kelo v. City of New London, however, for New Yorkers eminent domain has become personal. The use of eminent domain in New York State, and particularly in metro New York, has been heavily discussed, analyzed and criticized in recent news, specifically with the debate surrounding the planned Atlantic Yards Project in Brooklyn and the December 3, 2009 appellate court decision barring the use of eminent domain for a proposed Columbia University expansion project in the West Harlem.

New York Times columnist Terry Pristin wrote in this week’s Square Feet column about the recent NY appellate court decision in Kaur v. New York State Urban Dev. Corp., the Columbia University case. In “Lesson on Limits of Eminent Domain” Ms. Pristin discusses what she calls “the clamor for reform” of the eminent domain system in New York. Pristin notes that property rights advocates and citizens alike are calling for significant revision to New York’s eminent domain procedure law, a redefining of the term “blight” and reforms to the policies which the government and governmental agencies follow when employing the power of condemnation. On the other hand, proponents of the proposed redevelopment projects argue that a change to the current system would hinder important investments in NYC’s future (such as the Columbia expansion).

Pristin spoke with Kathryn S. Wylde, chief executive of the Partnership for New York City, a leading business group. Ms. Wylde commented on the Kaur case indicating that the appellate court’s decision “is the first thing that’s happened in New York that suggests the threat of a change in our eminent domain law…I think it’s frightening because there are few more important investments in our city’s future than that which Columbia is making.”

Ms. Pristin quotes also OCA Member and New York eminent domain attorney, Michael Rikon, regarding his thoughts on the clamor for reform “I think people are really getting a foul smell from what’s been going on.”

Two interesting items about Ms. Pristin’s article are worth noting. First, Ms. Pristin discloses that Forest City Ratner, the developer of Atlantic Yards, also partnered with the New York Times Company‘s in the development of its headquarters building on land on Eighth Avenue that was acquired by the state through eminent domain. Second, on Ms. Pristin’s Navigator she lists the blog Atlantic Yards Report (“This watchdog blog offers analysis, commentary and reportage about Forest City Ratner’s planned $4 billion Atlantic Yards project, the largest ever in Brooklyn.”) as one of the websites/blogs that she regularly follows.

This week The Washington Post also featured a letter to the editor written by Daniel E. Goldstein, co-founder of Develop Don’t Destroy Brooklyn and lead plaintiff/property owner in Goldstein, et al. v. New York State Urban Development Corporation d/b/a/ Empire State Development Corporation. Mr. Goldstein’s letter “Seeking N.Y. land, developer twisted meaning of ‘blight” responds to Developer Charles Ratner’s letter to the editor published January 12, “Atlantic Yards project was not properly presented.” Mr. Charles Ratner, president and chief executive officer of Forest City Enterprises, Inc. (developer of Atlantic Yards), wrote in response to George Will’s January 3 column “Avaricious developers and government twist the meaning of ‘blight.'” Don’t let all of this finger pointing turn you off. Will’s column and each letter in response are well worth reading but we have included some of the highlights here.

In his op-ed Mr. Will discusses the Atlantic Yards project in Brooklyn equating it to a battle, “The fight involves an especially egregious example of today’s eminent domain racket. The issue is a form of government theft that the Supreme Court encouraged with its worst decision of the past decade — one that probably will be radically revised in this one.” Will argues that in order for Mr. Bruce Ratner, Executive Vice President and Director of Forest City Enterprises, to “build a huge complex of high-rise residences, commercial properties and a basketball arena for the NBA’s New Jersey Nets [Atlantic Yards]” and facing the problem “that people live and work where Ratner wants to build…blight had to be discovered [for eminent domain to be used].”

In response, Mr. Ratner writes, “At the start of this project, my company announced that it would try to avoid the use of eminent domain. To that end, we bought properties in the footprint, many of which were abandoned warehouses and empty lots. A group of holdouts announced early on that they were opposed to the development and pledged to sue often. They kept their word — but lost every battle.”

And, again, in response, Mr. Goldstein writes, “Mr. Ratner pretends the Atlantic Yards project site is little more than a rail yard, warehouses and empty lots. This is false. Before his firm, Forest City Enterprises, came along with its eminent domain and demolition plans, it was a gentrifying but mixed-income, mixed-use home to about 400 residents and 35 businesses.”

Goldstein concludes with, “Forest City would like everyone to think it tried to avoid using eminent domain and would use it only as a “last resort.” But eminent domain was purposely the first resort — it was the threat of eminent domain used as a gun to the heads of property owners and tenants that allows Mr. Ratner to think — delusionally — that he hasn’t actually used eminent domain. The threat and the use are precisely the same, equally insidious and achieve the same result.”

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