Friday, October 16, 2009

From the 2005 Kelo case to the 2009 Goldstein case: does "the specter of condemnation" hang over all property?

In the Manhattan Institute's Fiscal Watch, Nicole Gelinas writes about the oral arguments in the Atlantic Yards eminent domain case (Goldstein, et al. v. New York State Urban Development Corporation d/b/a Empire State Development Corporation) Wednesday:
In arguments this week, one judge asked the state’s lawyer: “is it the law of New York that if I own a house in an area that the government thinks could be improved, a perfectly nice house, it’s a clean house, nothing particularly wrong with the area, but it could be better, more vibrant, more dynamic businesses, is that enough for the government to [condemn and seize] the house?”

The state’s answer: “Under New York State constitutional law, yes, it is.” The attorney cited a case that goes back to the construction of the World Trade Center, in which the the state court approved the condemnation of 13 blocks in Lower Manhattan to build a project that it thought would be a tremendous economic boon.
From the Kelo dissent

When I wrote about that Thursday, I noted that Judge Robert Smith was, without direct reference, bringing up Justice Sandra Day O’Connor’s fiery dissent in the 2005 Kelo v. New London case, which was decided 5-4 and galvanized courts and legislatures in most states--but not New York--to revise eminent domain law.

Here's O'Connor's famous quote:
The Court rightfully admits, however, that the judiciary cannot get bogged down in predictive judgments about whether the public will actually be better off after a property transfer. In any event, this constraint has no realistic import. For who among us can say she already makes the most productive or attractive possible use of her property? The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.
Did the ESDC give up too much?

What I didn't point out is that I think Empire State Development Corporation (ESDC) lawyer Philip Karmel might have hedged somewhat.

Perhaps he could have said that condemnation would only proceed via a “'carefully considered' development plan," to quote Justice John Paul Stevens' opinion of the court in Kelo, or within the "context of a comprehensive development plan," to quote Justice Anthony Kennedy's concurrence.

After all, eminent domain defenders, as quoted in this Governing magazine article, certainly think the policy is valuable. Surely it can be so. But even those who see its value think New York could use some reforms.

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