NY Court of Appeals rules in favor of Atlantic Yards eminent domain

In a decision released today, New York's highest court upholds 6-1 the use of eminent domain by the New York State urban Development Corporation d/b/a Empire State Development Corporation ("ESDC") for the multi-use Atlantic Yards project in Brooklyn.

The majority opinion authored by Chief Judge Jonathan Lippman suggests that it is not the role of the Judiciary to interfere with legislative agencies. Judge Lippman writes: "The [NY] Constitution accords government broad power to take and clear substandard and insanitary areas for redevelopment. In so doing, it commensurately deprives the Judiciary of grounds to interfere with the exercise." (Opinion, p. 18).

Although Lippman suggests that the ESDC may have overreached with the designation of blight for portions of the Atlantic Yards footprint, the opinion is clear that this is a matter for the Legislature to tackle. "It may be that the bar has now been set too low -- that what will now pass as "blight," as that expression has come to be understood and used by political appointees to public corporations relying upon studies paid for by developers, should not be permitted to constitute a predicate for the invasion of property rights and the razing of homes and businesses. But any such limitation upon the sovereign power of eminent domain as it has come to be defined in the urban renewal context is a matter for the Legislature, not the courts." (Opinion, p. 17).

In his dissenting opinion Judge Robert Smith writes: "The good news from today's decision is that our Court has not followed the lead of the United States Supreme Court in rendering the 'public use' restriction on the Eminent Domain Clause virtually meaningless. The bad news is that the majority is much too deferential to the self-serving determination by Empire State Development Corporation (ESDC) that petitioners live in a 'blighted' area, and are accordingly subject to having their homes seized and turned over to a private developer." (Dissent, p. 1).

Despite today's opinion in favor of the ESDC, Atlantic Yards continues on an uphill legal battle with three other lawsuits pending.

For additional commentary visit Norman Oder's Atlantic Yards Report.

See also Charles Bagli's article in today's NY Times Atlantic Yards Project in Brooklyn Clears Legal Hurdle.

Texas votes to limit eminent domain

In Tuesday's election, Texas voters overwhelmingly voted in favor of Proposition 11, a constitutional amendment limiting the state's eminent domain powers. Prop 11 (H.J.R. 14, Article 1) limits the use of eminent domain for public use and specifically defines "public use" to specifically not include "the taking of private property for...transfer to a private entity for the purpose of economic development or enhancement of tax revenue purposes." (See "Analyses of Proposed Constitutional Amendments", the Texas Legislative Council, pps. 27, 57-60.)

Although Prop 11 was supported by 81% of voters and backed by the Texas Farm Bureau, Governor Rick Perry and many other Texas politicians, some have argued that Prop 11 does not go far enough to strengthen private property rights and to curb eminent domain abuse. The President of the Texas Farm Bureau called the passage of Prop 11 "an important but incomplete victory" and argued that Texas eminent domain laws continue to favor the condemning authority. While, Senator Kay Bailey Hutchison called yesterday's vote a "first step" toward strengthening private property rights in Texas.

Texans Uniting for Reform and Freedom (TURF), a pro-private property and anti-toll organization, have argued that Prop 11 leaves loopholes open for condemnors to continue to abuse eminent domain and to condemn for "urban blight." Further, the Institute for Justice has argued that Prop 11 "allows the state to give any entity—including private entities—the power of eminent domain."

For more details about the passage of Prop 11 and other Texas constitutional amendments, see AP article by Kelly Shannon: Texans vote to limit state's eminent domain powers.