November 27, 2009
Atlantic Yards site "blighted"? Some "reasonable difference of opinion"
Atlantic Yards Report
Last week's high court ruling has just set the bar impossibly high for New York homeowners and businesses to defend their property rights against eminent domain.
Libertarian law professor Ilya Somin calls the Atlantic Yards eminent domain decision "the first major state supreme court defeat for property rights on a public use issue since" the controversial 5-4 Supreme Court decision (2005) in Kelo v. New London, in which state courts and legislatures were invited to draw on local conditions to narrow the use of eminent domain.
Somin wasn't surprised, given New York's history of court deference to agencies such as the Empire State Development Corporation (ESDC), the successful defendant in this case. He writes:
To get around this problem, the Court held that “blight” alleviation is not limited to “‘slums’ as that term was formerly applied, and that, among other things, economic underdevelopment and stagnation are also threats to the public sufficient to make their removal cognizable as a public purpose” (pp. 15–16, quoting a 1975 decision).
Obviously, virtually any area occasionally suffers from “economic underdevelopment” or “stagnation” and therefore could potentially be condemned under this rationale. Moreover, even under this expansive definition of blight, the decision states that courts can only strike down a condemnation if “there is no room for reasonable difference of opinion as to whether an area is blighted.” With respect to any neighborhood, there is nearly always “room for reasonable difference of opinion” as to whether the area is “underdeveloped” relative to some possible alternative uses of the land in question. Defining blight this broadly and then deferring to the government’s determination of whether such “blight” actually exists effectively reads the public use restriction out of the state constitution.
That's essentially what Judge Robert Smith said in his dissent, as well.
Posted by lumi at November 27, 2009 5:18 AM