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November 14, 2009
Views On Eminent Domain From An Eminent Blogger
Atlantic Yards Report
A defender of eminent domain: it should be a local decision (but what about AY?)
If you don't recall when you or your elected representative got to vote on the proposed Atlantic Yards project, it's because that never happened.
Two more commentators have joined the online New York Times discussion (previous coverage) regarding Pfizer's pullout from New London and the aftermath of the Kelo vs. New London eminent domain case.
Yale Law School professor Thomas Merrill, a supporter of eminent domain, writes:
I do not believe that this sad episode means we should overturn Kelo and ask federal judges to arbitrate questions about when eminent domain should be used. The solution is not to nationalize eminent domain, but to localize it. If a proposed project is one that will have primarily local benefits — like economic development — then local citizens should decide whether to pursue it, not some state redevelopment agency or the governor’s office.
Local residents will have a better idea whether a project is likely to succeed, and what impact it will have on those who are forced to move. It is particularly important that these projects be funded with local dollars — either local tax revenues or block grant monies that can be used for a variety of purposes — rather than federal or state grants controlled by people outside the community. The New London project was almost entirely funded by the State of Connecticut. This is the root cause of a series of calamities that now leave virtually everyone worse off.
(Emphasis added)
While Atlantic Yards would have both state and local benefits, it would most affect the city of New York and borough of Brooklyn. But a state redevelopment agency--the Empire State Development Corporation--is in charge. And no local elected official had a vote.
Norman Oder adds his assessment to today's piece by Nicole Gelinas in the Wall Street Journal.
Given that the justification for eminent domain in the Atlantic Yards case is blight, rather than economic development (as in the Supreme Court's controversial Kelo vs. New London decision, now back in the news), Nicole Gelinas's op-ed in tomorrow's Wall Street Journal is especially timely.
It's headlined The Empire State and Eminent Domain: A neighborhood with $600,000 apartments is declared 'blighted.'
Gelinas, who's part of the free-market Manhattan Institute, points to a state court decision that suggests that when private benefit trumps public use, eminent domain is invalid, and the failure of state voters to approve an amendment adding "public purpose" to "public use."
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She writes:
So to push the Atlantic Yards project through the courts, New York state isn't arguing that it needs to take Mr. Goldstein's property for economic development. Instead, it has declared that Mr. Goldstein's neighborhood is "blighted." This allows the state to condemn property on the theory that clearing unsanitary and unsafe slums constitutes a public benefit.
In fact, the Prospect Heights neighborhood that Mr. Goldstein and his wife have made their home is hardly a slum. Prospect Heights was thriving before Atlantic Yards construction began. It's a hip neighborhood that's a short hop on the subway from Manhattan.
Well, not every block was thriving, but Prospect Heights was surely on the way up, as New York Times Real Estate section stories indicated.
The blight argument is bogus--remember, then-Assemblyman Roger Green, a supporter of the project, declared in 2005 that the neighborhood around the site wasn't blighted.
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Gelinas points out that the Blight Study by AKRF cites weeds and graffiti as examples of blight--which could be removed by development. She adds:
Mainly, however, the report pointed to "underutilization" of the land, concluding that the area wasn't being used to the maximum economic benefit allowed by law. But that means the Atlantic Yards is really an economic-development project—and that the politicians along with Mr. Ratner want to manage Brooklyn's economy rather than let competitive forces continue to improve the neighborhood.
The next conclusion should be this: Atlantic Yards then is not very distinct from Kelo.
There is an unmentioned argument for eminent domain: the difficulty of assembling land for a large project. But there has to be a legitimate public use/purpose, like, say building new rail networks.
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While Goldstein in 2003 paid $590,000 for a 1290 square foot apartment, now, Gelinas reveals, the state has offered only $510,000, less than half of what Ratner offered four years ago.
That offer is $395/sf, a stunning figure, given that the ESDC's consultant, KPMG, says that the current range for Prospect Heights starts at $470/sf and ranges up to $1225/sf.
Posted by steve at November 14, 2009 8:29 AM