After all, his last public statement on the issue was more than two years ago and he has more pressing issues on the agenda than fighting the Columbia expansion plan in Harlem or the Atlantic Yards project, which is likely why he has said he won't change course on AY.
That said, there’s a logical, constructive, and politically safe step he could take. It would honor the sentiments he expressed in 2005 but at the same time not alarm those who want to make sure that governments retain the power to exercise eminent domain for true public use.
He should establish a Temporary State Commission on Eminent Domain to address questions like the extent of eminent domain abuse in the state as well as a revised definition of public use, an issue at the heart of the Atlantic Yards eminent domain case.
Such a commission was a key recommendation of a Special Task Force on Eminent Domain appointed in November 2005 by the New York State Bar Association in the wake of the U.S. Supreme Court's controversial Kelo vs. New London decision, which upheld use of eminent domain for economic development.
The recommendation was first included in the task’s force interim report, approved in August 2006, some 30 years after the state's Eminent Domain Procedure Law was established. It's also in the final report, finished in July 2007 but approved by the association’s House of Delegates and Executive Committee last month. (There's been no press coverage outside the New York Law Journal.)
The report is generally quite cautious in its recommendations, as I explain, and doesn't mention Atlantic Yards. Perhaps a commission could offer additional recommendations grounded in research. It also could draw on some lessons from the Atlantic Yards case, in which, for example, the state scoffed at claims that the area around the project footprint was recovering, while the attorney for the petititioners in the case challenging the project environmental review pointed out that the state had done no market analysis.
A Temporary State Commission on Eminent Domain should be established. The Kelo decision and the publicity it engendered have focused attention on the complex legal, economic and constitutional issues surrounding eminent domain. While this Task Force may indeed make additional recommendations, and is continuing to study topics such as defining public use, the appropriate level of judicial scrutiny, just compensation, and others, we believe legislative proposals for a Temporary State Commission on Eminent Domain make sense. Resolving these issues will best be accomplished through study by a variety of stakeholders to assure that all viewpoints are represented.
The idea for a commission has been on the table for more than eight years. As attorneys M. Robert Goldstein and Michael Rikon wrote in a 12/29/06 column for the New York Law Journal, "the Condemnation, Certiorari and Real Estate Committee of the Real Property Section of the New York State Bar Association on 1/27/00 urged the creation of a temporary commission to update and moderning eminent domain law."
In February, I asked Task Force Chair Patricia Salkin, Associate Dean and Director, Government Law Center of Albany Law School, about the potential use for the new report and prospects for such a commission.
The Interim Report was sent in 2006 to the chairs of the relevant committees in the Legislature, she responded, “but that was at a time when there appeared to be more interest in the issue. It is more likely that this report will be available passively (on the web) for anyone interested, and that the Government Relations Department of the State Bar will use it to guide any comments they are asked to offer on any proposed legislation in the future.”
“It would be good for a Temporary State Commission to be created to revisit the law now more than 30 years old,” she added. “It was not in the Governor's State of the State Message so unless advocacy groups try to push this as an agenda item, I don't see it happening in 2008.”
This month, however, we have a new governor. Last Friday, Goldstein and Rikon asked in a New York Law Journal column, Where Is Temporary Commission on Eminent Domain?"
Even with a safe move like a commission, Paterson could start making his mark.