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April 7, 2011

Seeking balance over blight, academics suggest new standards, dropping underutilization, and tougher look at projects with more % of private benefits

This is Part 3 of a three-part series (Part 1, Part 2) on Fordham Law School's eminent domain symposium in February.

Atlantic Yards Report

Is there a reasonable compromise that would preserve the use of eminent domain as a tool for government while preventing dubious tactics like claiming underutilization--or cracks in the sidewalk--equal blight?

And shouldn't courts play some role in scrutinizing blight, especially for certain projects, ones which promise a greater ratio of private than public benefits?

In an intriguing paper titled The Use and Abuse of Blight in Eminent Domain, attorney (and part-time Columbia academic) Martin E. Gold and Lynne B. Sagalyn of Columbia Business School (and the book Times Square Roulette), set out a hierarchy of eminent domain projects, from those with clear public benefits to those with more private benefits.

Those at the bottom of the hierarchy deserve the most scrutiny, and thus a closer examination of blight findings. They mention Atlantic Yards as falling somewhere in the middle of the hierarchy and criticize some of the definitions used in the AY eminent domain case, notably underutilization.

Need for review

They make a strong case for redefinition, arguing that "effectively there is no review of blight findings in New York" and--as others have contended--the courts have abdicated their role in policing eminent domain.

So "thoughtfully crafted, objective and measurable, standards for the determination of blight" are needed:

If blight is to continue to be a condition and cornerstone for condemnations for renewal or economic development undertakings, it needs serious alteration; otherwise it will continue to serve more as an expensive foil for projects sought by developers and government officials, than as a screen filtering out lands that should be left alone.

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Posted by eric at April 7, 2011 11:27 AM