It was apparently written, though not published, before the 10/14/09 oral argument in the Atlantic Yards eminent domain case.
Dunn allows for the possibility that the Court of Appeals might narrow eminent domain law, though the court had long agreed that "public use" could mean "public purpose."
After attending the oral argument, I wouldn't rule it out either, but not necessarily for the reasons Dunn cites. Rather, as I describe further below, the issue might be the state's broad use of the term "blight."
Looking at the law
Dunn's column walks through a string of old cases cited in the plaintiffs' brief, then notes that more recent cases, known as Muller and Yonkers, favor the state:
Given the Court of Appeals rulings in cases like Yonkers and Muller, the legal challenge to the Atlantic Yards project faces formidable obstacles. Nonetheless, the Court chose to take the case when it could have simply let stand the Appellate Division's ruling rejecting the challenge. Moreover, as dramatically illustrated by its May 2009 ruling invalidating warrantless police use of GPS devices to track suspects, the Court of Appeals seems newly open to construing state constitutional guarantees more broadly than their federal counterparts.Given the court's tough questioning of plaintiffs' lawyer Matthew Brinckerhoff about that line of cases, I think it's unlikely they'll overturn the lower court's decision on those grounds.
The Moses legacy
Dunn concludes with some context:
Looming over these legal considerations is the legacy of Robert Moses. Though hailed as a heroic figure during his time, public opinion has dramatically shifted about the mass relocations and neighborhood destruction caused by his public projects--made possible by the aggressive use of eminent domain. For instance, it is inconceivable to think that a proposal to build an elevated 20-late highway through the middle of SoHo and the Lower East Side, with the demolition of over 400 residential and commercial buildings, would be considered now. Yet, had it not been for Jane Jacobs and her advocacy, Moses' Lower Manhattan Expressway almost certainly would have been built in the late 1960s.Well, yes--and no.
Jacobs died in 2006, one year after the Supreme Court decided the Kelo case, in which she had filed an amicus curiae brief. Though the Court in Kelo effectively eliminated the federal Constitution as a barrier to the use of eminent domain to block property seizures for private economic development, we soon will see if the New York Court of Appeals is prepared to take a different path.
While the state's pursuit of eminent domain for the Atlantic Yards project certainly could be seen as heavyhanded, the scale is not the same as during Moses's era.
Several dozen buildings, not hundreds, were in the Atlantic Yards footprint and most, but hardly all, were purchased by developer Forest City Ratner, albeit with public money and the threat of eminent domain.
The blight issue
While the plaintiffs made multiple arguments, including the state's alleged failure to perform a cost-benefit analysis and the use of subsidies for a project in a blighted area banned market-rate housing, the single strongest issue--if the court is looking to update eminent domain law in light of current conditions--may be blight.
I'll reprise my coverage from the oral argument.
Judge Robert Smith pointed to photographs in the Empire State Development Corporation's (ESDC) Blight Study of Pacific Street. "You glance at it and see a ruined sidewalk over here and a perfectly normal building over there. That was the boundary of the urban renewal area. What I'm really asking is: Have you gerrymandered this area to fit what the developer wanted to build on rather than take an area of real blight?”
“No, your honor," ESDC lawyer Philip Karmel responded. "The Blight Study establishes that the project site is blighted and ESDC had a rational basis for its determination of substandard and--”
Smith interjected, asking hypothetically if it was OK for a developer to ask the government to condemn a whole site even if half of it isn't blighted.
Karmel, whose brief points out that the ESDC considers most of the non-ATURA blocks blighted as well, said the 1953 case known as Kaskel v. Impelliteri--not unlike the Supreme Court's Berman v. Parker--established that blight is looked at in terms of the area as a whole. (The brief notes that it’s not up to the courts to second-guess the condemnor’s map.)
He continued by contrasting this case with one called Denihan Enterprises, in which two-thirds of a city block was to be condemned for 17 public parking spaces. "So the court said there seemed to be an inadequate nexus between the stated public purpose and what the project would in fact achieve," he said. "That's the kind of case where pretext is something that needs to be analyzed--"
Smith interrupted, pointing to a charge in the petitioners’ brief that the state did not raise the issue of blight until some two years after the project was announced in December 2003.
"That's not correct, your honor," Karmel said. He paused, slightly derailed, and began talking about the Blight Study.
"Wasn't this originally seen as a community development project" Smith asked, but blight was later needed as a justification for condemnation.
"Absolutely not," insisted Karmel. "There is nothing whatsoever in the record."
Smith acknowledged there was no direct evidence, but asked, "At the time this was announced, when people were holding press conferences, where does the word 'blight' appear?"
Karmel soldiered on, despite having no evidence from 2003. One of the two Memoranda of Understanding signed in 2005, he said, refers to the Atlantic Terminal Urban Renewal Area. "It was long known that this was an area that had previously been targeted for urban renewal."
(Plaintiffs' attorney Brinckerhoff later said that this explanation had not been in the ESDC's briefs.)
Karmel paused, trying to steer the argument, and said, "I would like to go back to this issue of pretext."