Friday, May 15, 2009

Eminent domain expert: AY EIS decision deserves an Oscar for "approving a litigation outcome while holding the judicial noses"

In February, when a state appellate court ruled against a challenge to the Atlantic Yards environmental review, I noted that the majority "took pains to express some skepticism about the project" and Justice James Catterson offered "a concurrence that had the tone of a dissent."

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
.

Malleable blight

While Kanner inaccurately calls it "the state court counterpart" of the federal eminent domain lawsuit--actually, there's a state eminent domain lawsuit--he does find a telling quote from the decision:
The point to be made is that ‘blight’ has proved over time to be a highly malleable and elastic concept capable of enormously diverse application.

He observes:
So there you have it folks: the concept of blight is so “malleable” that, try as they may, their Lordships have never met a blight finding they didn’t like. New York, it turns out, has achieved such a state of civic perfection that none of its saintly politicians have ever abused the power of eminent domain in the redevelopment context. Wow!

The curious concurrence

Kanner writes:
Special honorable mention goes to Justice Catterson, for his concurring opinion. The wonder of it is how Justice Catterson could say what he said and still rule in favor of the condemnor

He quotes Catterson as saying "I reject the majority’s core reasoning, that a perfunctory 'blight study'... should serve as the rational basis for a determination that a neighborhood is indeed blighted” and calling ESDC's look only at conditions years after the project announcement "is ludicrous on several levels."

No judicial independence

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

Kanner commented:
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."

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