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On Brian Lehrer, Goldstein says ESDC offer for condo is less than what he paid in 2003; today's segment is Atlantic Yards

Let's hope today's Brian Lehrer Show segment on Atlantic Yards is a little more enlightening than the 45-minute segment on eminent domain, which skated lightly over the basics but didn't generate much heat.

(The only announced guest today is WNYC reporter Matthew Schuerman.)

In fact, the most enlightening moment of the segment came when Daniel Goldstein, spokesman for Develop Don't Destroy Brooklyn, called up and revealed that the Empire State Development Corporation (ESDC) actually offered him less money than he paid for is condo in 2003.

The segment began with some basics on eminent domain from Brooklyn Law School's Christopher Serkin. At about 13:30, he was asked by guest host Amy Eddings whether the state Court of Appeals, slated to hear the Atlantic Yards eminent domain case on October 14, might rule in favor of the plaintiff-appellants, who had lost in both federal court and one rounds in state court.

Not based on the U.S. Supreme Court's Kelo v. New London decision, he said, allowing that the backlash against Kelo had led some state courts to restrict eminent domain based on their state constitutions, and that chance remains.

Just compensation

At about 16;10, Goldstein called in. "As far as just compensation, people need to know what just compensation actually means in New York State," he said. "I received, last Monday, a letter from the ESDC, which is overseeing the use of eminent domain for Atlantic Yards, . where they make what is called their pre-vesting offer, what they're going to pay you should they take the property... They don't offer you just compensation. They don't even offer you fair market value. What they have offered is below the market value, any real estate agent would tell you that.... It is even below what I paid for the place... over six years ago, and everybody knows the market is not lower. So the point is, in New York State at least, people trying to live their lives in their homes are being punished... by incredibly low-ball offers."

Serkin said that properties are valued at the time of taking and can suffer from condemnation blight--the fair market value reflects the lowered perception of the property.

That doesn't seem fair, Eddings said.

Serkin said that, in some cases, "it can also be a race to the top."

The debate

In the next part of the segment, Dana Berliner, senior attorney at the Institute for Justice, and Kathryn Wylde, president & CEO of the Partnership for New York City, had a not too productive debate. Berliner described how eminent domain can be abused. Wylde said it's necessary to assemble sites in cities and has been "used judiciously and effectively to keep our city a great world city."

"New York has the absolutely worst eminent domain procedure of any state in the United States, bar none," Berliner said. "It is nightmare of hearings and supposed input opportunities all of which are completely and utterly ignored." She said it "substitutes the appearance of process and input for actual protection," with an "enormous deference to government."

Berliner didn't point out that, unlike in many states, those challenging condemnation in New York can't call witnesses but instead go directly to the appellate division. Wylde responded by anecdote, saying, "very often, during the process in New York, the condemnation plans have been amended."

The mayoral candidates

Then WNYC reporter Matthew Schuerman came on and described Mayor Mike Bloomberg as a thorough supporter of eminent domain and quoted Democratic nominee Bill Thompson as saying he supported it as a last resort.

Then again, Eddings pointed out, Thompson claims he's a late supporter of Atlantic Yards.

Schuerman, like others, expressed puzzlement, pointing to Thompson's 2005 support for Forest City Ratner's bid for the Vanderbilt Yard.

The Green Party candidate, Rev. Billy Talen, is of course an opponent of eminent domain.


  1. "Serkin said that properties are valued at the time of taking and can suffer from condemnation blight--the fair market value reflects the lowered perception of the property."

    Professor Serkin is incorrect. When evaluating a property for just compensation purposes, appraisals are expressly supposed to ignore the shroud of condemnation and developer's blight. Comparables are supposed to be properties not impacted by the proposed condemnation.

    By the way, I called in not to complain on my on behalf—though obviously I will fight the theft of my home by the ESDC—but rather to expose the ESDC and NY State because they do this lowballing all the time in these situations. It is so clearly wrong, yet they get away with it.

    I do not want them to get away with it or bypass public scrutiny of their actions.

    Also, for the scores of politicians in NYC and NYS who blithely say that eminent domain is okay because the owners are treated fairly—they need to understand that that happy talk is contradicted by the reality of the process and the condemnor's lowballing. Furthermore, renters—regulated or market—get screwed as well, as do most commercial property owners and businesses.

    There is no fairness whatsoever in the way NY does "just compensation," let alone justice. If the eminent domain is purportedly for the public good and some have to sacrifice for the public good, then why must those people be lowballed if the sacrifice is the taking of their homes and businesses?

    They shouldn't be.


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