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September 1, 2010
The seminal Berman v. Parker case: "precedent without context," and leading dangerously to cases like Kelo and Goldstein
Atlantic Yards Report
The U.S. Supreme Court's unanimous 1954 decision in the case known as Berman v. Parker is a foundation of eminent domain jurisprudence, guiding courts to defer to decisions made by legislative authorities and to allow a generous definition of blight.
Of course, there's an enormous contrast between the blight found in 1954 in Washington, DC slums--nearly half the residences relied on outhouses--and the "relatively mild conditions of urban blight" in Prospect Heights, as described last November by the New York Court of Appeals in the Atlantic Yards eminent domain case, Goldstein v. Urban Development Corporation (aka Empire State Development Corporation, or ESDC).
That's because successive court decisions expanded and elaborated on the base of Berman.
But what if the unanimously-decided Berman was wrongheaded? If so, and the setting was ignored, that further undermines controversial decisions like the Supreme Court's 2005 Kelo vs. New London case and the New York Court of Appeals' 2009 decision in Goldstein vs. ESDC.
Berman and urban renewal
As Amy Lavine, a staff attorney at the Government Law Center in Albany explains in an article for The Urban Lawyer, "Urban Renewal and the Story of Berman v. Parker" (embedded below, as well as excerpted), a closer analysis, plus hindsight, suggest that the court got it wrong, missing the point and ushering some very mixed results.
And, as noted in a footnote at the end of the article, one of the most egregious examples of the spawn of Berman--"precedent without context"--is the Atlantic Yards eminent domain litigation, which just happens to be the subject of another article in that same Urban Lawyer issue, which Lavine wrote with me.
I'll have more on that article, titled "Urban Redevelopment Policy, Judicial Deference to Unaccountable Agencies, and Reality in Brooklyn’s Atlantic Yards Project," tomorrow.
Related coverage...
Gideon's Trumpet, Two Good Articles on Redevelopment
We found of special interest the factual tidbit that though the Southwest redevelopment project was sold to the Supreme Court as an effort to uplift the poor slum dwellers who — so went the plan — would be provided with low-cost housing renting at $17 per month per room, in fact, after the court approved the plan and allowed the eminent domain takings to proceed, that provision of the plan was dropped. Ten years later, the Wall Street Journal reported that rents in the new, redeveloped Southwest were so high that they inspired a rent strike by affluent tenants.
Posted by eric at September 1, 2010 11:06 AM