Worms in the Big Apple

              As readers of this blog know, between the Atlantic Yards case (Goldstein v. Pataki) and the more recent Kaur case (of which more presently), New York has been roiled by a huge and evidently growing controversy over the use of eminent domain to wrest homes and businesses from unoffending people and turn their sites over to assorted local fat cats for the latter’s profit. It all reached a crescendo lately when the highly regarded Washington Post columnist, George Will, devoted two of his recent columns to lambasting New York for its abuse of the eminent domain power for private benefit. 

True, the New York Court of Appeals has not gone as far as the U.S. Supreme Court in the notorious Kelo decision – it continues to pay lip service to “blight” as justifying takings, but its use of “blight” as a justification isn’t even a good linguistic subterfuge. In New York anything the condemnor calls “blight,” no matter how absurd, is obediently rubber-stamped by the local courts. They may talk a good game about being guardians of the people’s constitutional rights, but when it comes to enforcement of the constitutional “public use” limitation, they neither see, nor hear, nor speak evil. In other words, in New York, “blight” is whatever the condemnor says it is, even when it plainly isn’t.

The way the New York Courts do it is to say that notwithstanding their supremacy in deciding what is constitutional, it is not for them to look at the facts of the case and to examine the determination of the local condemning body once it decides that the subject area is blighted. You doubt us? Then consider this. Here is how the New York Appellate Division (that state’s intermediate appellate court) described the situation: 

“In the many years since Kaskel [v. Impelliteri], agency blight findings have been found deficient in this State only where they were utterly unsupported, and there has been no case in which the condition of an area has been deemed sufficiently at odds with an agency blight finding to raise a factual issue as to whether the agency exceeded its authority in making the finding. This is not because limits of the blight concept have been untested. Indeed, if ever a claim of blight challenged one’s common-sense understanding of the term it was in a case ‘in which the city urged that the Coliseum site at Columbus Circle (now the location of the Time Warner Building) – undoubtedly, even at the time of litigation, one of the most valuable pieces of real estate in the City, bordering on the very exclusive southwestern corner of Central Park – was blighted and thus appropriate for designation as an urban renewal site. This Court, however, citing Kaskel, and accepting the city’s contention that the site was outmoded, underbuilt and insufficiently utilized, found the proposed designation [of blight] proper notwithstanding the site’s obvious, indisputable potential for private development. The point to be made is that ‘blight’ has proved over time to be a highly malleable and elastic concept capable of enormously diverse application.” Develop Don’t Destroy Brooklyn v. Urban Development Corp. (App.Div. 2009) 874 N.Y.S.2d 414, 424, emphasis added, citations omitted.

There you have it: the conduct of New York’s condemning agencies has achieved such a state of civic perfection, that their findings of “blight” do not even raise any factual issues, and are thus simply beyond debate. 

So it was a bombshell when the New York Appellate Division, First Department, filed its opinion in Kaur v. New York State Urban Development Corp. (2009) 2009 N.Y. App.Div. LEXIS 8799 (December 3, 2009), and upset the apple cart. The taking in that case was for the benefit of Columbia University. Columbia wanted to expand into the Manhattanville area, and the city obediently set up a redevelopment project to satisfy Columbia’s desires.

We could expend a lot of ink and paper describing the contents of this opinion, but if you have a real interest in eminent domain you simply have to read it for yourself. For once, the court refused to swallow whole the “findings” of blight because upon examination of the record it became clear to it that the “findings” were a tissue of conflict of interest, denial of due process of law, and manipulation of the administrative record. It isn’t every day that a court uses epithets to characterize a government finding, but here it did – with justification.

Naturally, the city plans to seek further review by the New York Court of Appeals (that state’s highest court), and at the moment, if we had to bet, we would bet, alas, on the city. Why? Not because its case is the better one – logically and doctrinally it isn’t – but because as demonstrated by the above Appellate Division quote, the New York judiciary is so biased on this subject that, in our opinion, its decision is a foregone conclusion. Still, we would like to be wrong on that one, so let’s all stay tuned and see what happens. It is possible that the country’s angry reaction to Kelo (which shows no signs of going away), combined with the outrageous specifics of the Kaur case may give those judges pause, so it is possible, just possible, that they may actually try to shoulder their moral burden and civic duty, and review the horrifying record in the Kaur case with a modicum of impartiality. It is also possible that your faithful servant will win the Megasomethingorother lottery, but we suggest you don’t hold your breath until then.

Is that all? Not on your life. What we find fascinating is the reaction of the New York nabobs to these developments. Today’s New York Times carries an article (Terry Pristin, Clolumbia Setback Puts Eminent Domain in Spotlight, Jamuary 20, 1010). Pristin parades all the usual suspects for us and provides the readers with the familiar pro and con contentions. But there is one amazing item in this article. It quotes one Kathryn S. Wylde, as deploring the Kaur decision: “The Columbia decision ‘is the first thing that’s happened in New York that suggests the threat of a change in our eminent domain law.’” Oh my God! Run for the hills, folks, for if New York changes the embodiment of perfection that is its eminent domain law that might be curtains for the civilized world as we know it. It’s frightening, that’s what it is. Quoth Ms. Wylde: “I think it’s frightening . . . “ 

So who is this Kathryn S. Wylde? Is she perhaps some anti-property rights activist? Some radical prole? Actually, no. She is a prominent business leader who is identified by the Times as chief executive of the Partnership for New York City, “a leading business group.” Yep. A leading business group supports takings of business properties of others for the benefit of its own members. Which in New York means confiscating businesses of others, because New York law does not allow recovery of any compensation for business losses suffered in eminent domain cases. 

All this reminds us of an expression attributed to V. I. Lenin who supposedly said that when the world’s last capitalist is hanged by the revolutionaries, he will swing from a rope sold to the revolutionaries by the next to last capitalist. Maybe ol’ Vladimir Ilyich didn’t actually say that, but if he didn’t he should have. And if this allusion to a communist tyrant strikes you as inappropriate, reflect instead on the lesson of the Bible which teaches that men are ever ready to sell their birthright for a mess of pottage . Make that men and women.

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