On October 13th we blogged on the subject of the New York Court of Appeals hearing oral arguments in Goldstein v. N.Y. State Urban Development Corp., the state court counterpart of Goldstein v. Pataki, the case challenging the legality of condemnation for the Atlantic Yards project in Brooklyn. We didn’t expect a whole lot and, sure enough, the court more or less rubbe-stamped the taking, invoking the familiar tune that the decision of what constitutes “public use” within the meaning of the Takings Clause of the Constitution, is for the legislature, not the courts which retain only a largely symbolic (and virtually never exercised) power to review the legislative determination that the proposed use is public. Here is what we said on the eve of the New York Court of Appeals oral argument in Goldstein:
“This is supposed to be a big deal — a chance for New York’s highest court to reform the unspeakable state of New York’s right-to-take law, under which anything and everything for which the city wants to take private property is judicially rubber-stamped as a “public use.” Possibly, the New York Court of Appeals may come to its senses, or regain its moral compass and hold that whatever Bruce Ratner’s Atlantic Yards mega-development may be, isn’t a public use. But we aren’t holding our breath. We hope to be pleasantly surprised, but we don’t expect much from the judiciary that in the past deemed the best land in Manhattan, located on Central Park South, to be “blighted” because Robert Moses wanted it for some fershluggener project of his. Still, hope springs eternal, and like Charlie Brown who every year hopes that Lucy will hold the football for him, and that he will be able to kick it, and not wind up on his little keester when she snatches the ball away at the last moment, your faithful servant is willing to be pleasantly surprised, though he isn’t counting on it. See https://gideonstrumpet.info/?p+311
Now the opinion has come down and it matches our low expectations.
So maybe it’s time to take the court at its word, and if this is indeed a matter best left to the democratic process, perhaps it’s time for the people to bestir themselves and exercise their rights by voting out of office those who would wield the power of eminent domain in this irresponsible fashion, and that should include judges who neither see, nor hear, nor speak evil as they merrily rubber-stamp whatever excesses the other two branches of government want to indulge in under the banner of eminent domain.