Eminent domain expert: AY EIS decision deserves an Oscar for "approving a litigation outcome while holding the judicial noses"
Gideon Kanner, an emeritus professor of law at Loyola University in Los Angeles and a veteran eminent domain litigator and critic, took a much bigger swing, in a post on his Gideon's Trumpet blog headlined It’s Oscar Time for their New York Lordships:
Since we write a stone’s throw from Tinseltown, we tend to award Oscars for outstanding performance, and the New York judiciary has just turned in a breathtaking bravura performance that calls for such recognition. The Oscar for writing an opinion approving a litigation outcome while holding the judicial noses, goes to the New York Appellate Division, First Department, for its virtuoso performance in Develop Don’t Destroy Brooklyn v. Urban Development Corp., 874 N.Y.S.2d 414.
Kanner offers some sobering words for New Yorkers:
[N]ext time some politician — black-robed or otherwise — starts pontificfating about “judicial independence,” remind him of this opinion in which the judges recognized that there was no basis for their decision, but they rendered one in favor of the condemnor anyway in a sort of a the-devil-made-us-do-it performance.
Game is rigged
In a 10/14/06 speech in Albany at the Tenth Annual National Conference on Private Property Rights held by the Property Rights Foundation of America, Inc., Kanner slammed New York as "kind of the basement or the sub-basement of eminent domain law, if not the sewer."
In his speech, EMINENT DOMAIN: Where We Are, Where We’ve Been, & Where We Should Be Going, Kanner was blunt:
New York has a very primitive, very brutal system of eminent domain.
Why is New York worse? Only two other states, he said, deny people a right to jury trial, which allows for witnesses, discovery of evidence, and cross-examination of experts.
Moreover, in New York, he said, counties with any significant amount of eminent domain business have a single judge designated to hear cases. I'm not sure that's accurate--in New York City, it's a single appellate court, not a judge--but his point is that a much smaller corps of eminent domain lawyers has been developed.
Land assembly vs. redevelopment
New York is a sewer. New York City is a sewer when it comes to abuse of the power of eminent domain for favored private interest. The New York Stock Exchange, the New York Times, the Bank of America, those are only the current ones. That’s been going on for a long time. And, it’s phony. Why do I say that with such force? Well, I come to New York on business regularly, every now and then, and every time I go to Manhattan, what do I see? I see construction. I see skyscrapers going up. I see cranes. I hear jackhammers going. Almost none of it is redevelopment. This is all privately assembled land on which private individuals build buildings. So what do they need all that redevelopment for, if not for private, favored deals?
He said entire chunks of boroughs have been abandoned--not so true by 2006--but his point was that eminent domain wasn't necessary to start development in prime areas. And the same could be said for the Atlantic Yards footprint, where no rezoning was attempted.
The New York Courts, he concluded bluntly, "are completely hopeless."