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October 10, 2009
Will New York’s Highest Court Deliver State Eminent Domain Abuse Standards More Lax than Kelo? Can ED’s Paramount Purpose Be Private Monopolies?
Noticing New York
Here is a review of some of the eminent domain issues concerning the proposed Atlantic Yards project. This is presented as the New York Court of Appeals prepares to hear the case of Goldstein v. New York State Urban Development Corporation this week in Albany. The question is: Will the Court take this opportunity to strengthen the rights of property owners, or allow - - weaker even than the protections against eminent domain abuse dictated by the Supreme Court Kelo decision.
New York State’s style of eminent domain is violative of what should be the fundamental constitutional protections against takings, in part because the takings of property from one private owner to favor another occur in a totally biased environment. Basic, essential due process rights are denied New York property owners, including the right to a fair fact-finding forum where government determinations can be tested with the check and balance of an adversarial process. This is covered in the just-released report of The Institute for Justice (October 2009), Building Empires, Destroying Homes: Eminent Domain Abuse in New York.
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Perhaps the more important abuse in New York is the way that state officials, thus insulated from due process checks and balances, have perverted the purpose of eminent domain, essentially selling this public tool to private entities. Two cases in point: Atlantic Yards and Columbia’s Expansion. Eminent domain is now used as a tool by private entities to eliminate competition and establish monopolies. Perhaps, by definition, eminent domain can be considered a tool that at its core surmounts the normal competition of the free marketplace, but Forest City Ratner and Columbia have taken the suppression of competition to the furthest possible extremes.
Maximizing the preclusion of competition, eminent domain as practiced in the Atlantic Yards and the Columbia expansion environments is an absolutely no-bid proposition. Justice Kennedy’s pivotal opinion in the Kelo case (the U.S. Supreme Court’s most recent pronouncement on eminent domain), establishes precepts that eminent domain can’t involve “impermissible favoritism” or “picking out a particular transferee beforehand,” Yet Atlantic Yards and Columbia dare to violate this by establishing their no-bid mega-monopolies at the get-go, center-staging them as the very essence of their schemes. The 22-acre Atlantic Yards site actually abuts a not terribly successful development already owned by the same owner, expanding the monopoly to some thirty or more acres. Verifying that the public purpose for establishing this monopoly is pretextual, the public agencies are providing no cost benefit analysis and the calculations that have been done (not by those agencies) for the Atlantic Yards basketball arena, the only part of the megadevelopment that may actually be built, shows that the arena is, conservatively, a $220 million net loss for the public.
Posted by steve at October 10, 2009 6:28 AM