Tuesday, February 16, 2010

"If the blight comes through": why reform of state eminent domain laws is overdue, and notes from Senator Perkins's workshop Saturday

So, if laypeople of the Empire State Development Corporation (ESDC) board can determine blight in Prospect Heights even if they never visit to Brooklyn, it's a mighty subjective science.

Which is why state Senator Bill Perkins's effort to reform the state's eminent domain laws is long overdue--and will be a tough battle.

For those closely following eminent domain in New York, there wasn't a huge amount new at the workshop Perkins sponsored Saturday in Albany, but--when the video becomes available--it was a good introduction to the issue.

Flashback from Radio Golf

Before I offer a summary, let's flash back to August Wilson's play about urban redevelopment, Radio Golf, on Broadway in 2007. During the play, the Bedford Hills Redevelopment Agency aims to get the city to designate certain properties as blighted.

"If the blight comes through," project supporters say at several points and, eventually, it does.

Because it, like Atlantic Yards, was a wired deal.

From the workshop

Christina Walsh of the libertarian Institute for Justice gave the big picture, calling New York "the worst state in the country for eminent domain abuse" and noting that courts "defer fully to determinations of blight" made by agencies like the ESDC.

She cited issues ignored by the state Court of Appeals in its November decision upholding the ESDC, such as the timing of the Blight Study, created after the project site was determined by Forest City Ratner, and the fact that it was paid for by the developer.

She said a study by the IJ concluded that eminent domain reform in the past few years "has no impact on economic growth."

And while that surely would be disputed by eminent domain supporters in New York, she noted that the former head of the Urban Development Corporation (the ESDC's formal name), William Stern, now thinks that eminent domain retarded progress in Times Square.

Setting the problem

Walsh quoted from Chief Judge Jonathan Lippman's opinion:
It may be that the bar has now been set too low -- that what will now pass as "blight," as that expression has come to be understood and used by political appointees to public corporations relying upon studies paid for by developers, should not be permitted to constitute a predicate for the invasion of property rights and the razing of homes and businesses. But any such limitation upon the sovereign power of eminent domain as it has come to be defined in the urban renewal context is a matter for the Legislature, not the courts.
And she quoted from Judge Robert Smith's dissent:
The whole point of the public use limitation is to prevent takings even when a state agency deems them desirable. To let the agency itself determine when the public use requirement is satisfied is to make the agency a judge in its own cause. I think that it is we who should perform the role of judges, and that we should do so by deciding that the proposed taking in this case is not for public use.
Some history

Amy Lavine of the Government Law Center at Albany Law School gave some history of blight in the state, showing the tenement houses that actually caused health hazards, and describing how the law expanded to slum clearance for public and private housing, then to increasing the tax base.

She cited dubious aspects of the blight studies for the Columbia University expansion and Atlantic Yards, such as cracked sidewalks or cars parked on the sidewalk.

As for Atlantic Yards, the site is near and abuts historic districts. And while the Vanderbilt Yard may be ugly, "is an esthetic determination enough to call it blight?" After all, she noted, the "ugly railyards" didn't stop the redevelopment of a Daily News printing plant into the Newswalk condos.

While some deteriorated buildings--she showed a slide of the Underberg Building--could be called blighted, others were deemed blighted despite no physical deterioration; she showed slides of four buildings deemed blighted because they're underutilized.

She acknowledged that blighted areas that can benefit from redevelopment but said process was important; Melrose Commons is a revived part of the South Bronx, but the development came from a coalition that worked with the city to limit displacement and reuse buildings. "There are better ways to do this," she said.

From the audience

Garry Johnson, a community board member from East Harlem, commented from the audience that affordable housing and jobs are often offered as carrots to get projects passed. "What happens, invariably, is you can't afford the affordable housing... or the jobs are temporary," as with recent layoffs at a Costco in East Harlem.

"How do we empower the community not to be so easily enticed?" he asked.

Perkins responded, "They make a fool out of us time and time again, because they dangle goodies" that are either absent or insignificant. His not-so-simple solution: vigilance.

On another note, one audience member, suggested that one way to to curtail eminent domain is to ensure that those who lose their property are stakeholders in the projects that get built, thus sharing some of the upside of the increase in development rights.

(That's been done elsewhere; see the end of this post on a post-Kelo conference.)

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