Wednesday, October 13, 2010

Justice Catterson, forced to defer to the condemnors, concludes that "there is no longer any judicial oversight of eminent domain proceedings"

A law review article I co-authored this spring with Amy Lavine argues that judges have become too deferential to condemning agencies and don't examine eminent domain sufficiently:
The courts have repeatedly used the principle of legislative deference to pass on the difficult issues—such as whether an arena is really a public good, whether private developers should be able to dictate that public good, the meaning of “blight,” and when a project changes so much as to require reapproval.
A judge reinforces the argument

Yesterday (as per DDDB), Appellate Division Justice James Catterson let loose with a blistering coda to that argument, concurring reluctantly in a decision upholding eminent domain:
In my view, the record amply demonstrates that the neighborhood in question is not blighted, that whatever blight exists is due to the actions of the City and/or is located far outside the project area, and that the justification of under-utilization is nothing but a canard to aid in the transfer of private property to a developer. Unfortunately for the rights of the citizens affected by the proposed condemnation, the recent rulings of the Court of Appeals in Matter of Goldstein v. New York State Urban Dev. Corp., 13 NY3d 511 [the Atlantic Yards case] and Matter of Kaur v. New York State Urban Dev. Corp., 15 NY3d 235, [the Columbia University case] (2010), have made plain that there is no longer any judicial oversight of eminent domain proceedings. Thus, I am compelled to concur with the majority.
Catterson background

Catterson is noted for some forceful opinions in cases related to the two above.

In February 2009, he wrote a scorching concurrence in the case upholding dismissal of challenge to the Atlantic Yards environmental review:
Because I believe that the New York Urban Development Corporation Act… is ultimately being used as a tool of the developer to displace and destroy neighborhoods that are "underutilized," I write separately. I recognize that long-standing and substantial precedent requires a high level of deference to the Empire State Development Corporation's finding of blight. Reluctantly, therefore I am compelled to accept the majority's conclusion that there is sufficient evidence of "blight" in the record under this standard of review. However, I reject the majority's core reasoning, that a perfunctory "blight study" performed years after the conception of a vast development project should serve as the rational basis for a determination that a neighborhood is indeed blighted.
Catterson also wrote the plurality opinion blocking the Empire State Development Corporation from pursuing eminent domain for the Columbia University expansion.

However, he glaringly ignored the recently-issued decision in the Goldstein case noted above, and saw his ruling overturned unanimously by the Court of Appeals.

The plaintiffs are seeking a Supreme Court hearing.

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