Shane Egan, Albany Government Law Review Member
Energy independence is one of America’s most important, if not most illusive, goals. Today, the United States imports large amounts of energy from hostile governments around the world. Here in New York, we rely on out-of-state energy for a significant percentage of our energy consumption. This and other factors contribute to high energy costs inside New York. With that in mind, New York should implement policies that stimulate the intrastate production of energy. Enhancing the use of renewable energy in New York will help lower energy costs, create jobs, and lessen our reliance on imported energy.
Wind power can and should play an important role in meeting New York’s energy needs. This not a new idea. New York already has a number of renewable energy goals, including the Renewable Portfolio Standard (RPS), which calls for thirty percent of the state’s energy to be derived from renewable sources by 2015. These renewable sources include wind power, and several large projects are already underway.
However, despite New York and Federal efforts aimed at stimulating the construction of wind turbines in the form of grants and tax credits, there are still many obstacles standing in the way of creating sustainable wind energy. Two such obstacles are zoning regulations and permit requirements. In order to stimulate the construction of wind farms, New York should enact legislation to break down zoning barriers and streamline the number of permits required to construct wind turbines.
Continue reading “Removing Administrative and Zoning Barriers to Wind Farm Construction: Re-powering New York State”
Robert Barrows, Albany Government Law Review Editor-in-Chief
In 2005, the United States Supreme Court held in a controversial decision that the clearing and transfer of private property to a private developer for the purpose of economic redevelopment was a “public use” under the Takings Clause of the Fifth Amendment. The holding in Kelo v. City of New London not only outraged certain members of the Court, it also prompted forty-three states to pass legislation restricting the use of eminent domain. Although efforts were made to reform the state’s condemnation procedures, New York is not one of the forty-three. In the last eight months, however, New York courts have issued two decisions with strong implications for the state’s eminent domain powers. In Matter of Goldstein v. N.Y.S. Urban Development Corp., the New York Court of Appeals endorsed the use of eminent domain to remove blighted properties in the Atlantic Yards neighborhood of Brooklyn for the development of a new arena for the New Jersey Nets as well as luxury apartments and office space. Decided within two weeks of Goldstein was In re Parminder Kaur v. N.Y.S. Urban Development Corp., where the First Department, in a complete turnaround from the Court of Appeals, sided with private property owners in the Manhattanville section of West Harlem who were fighting the City’s decision to use eminent domain for the purpose of expanding Columbia University’s campus. The court held that the taking was unconstitutional and failed to meet the state constitution’s “public use” requirement. The Court of Appeals will hear arguments for In re Parminder Kaur, in the beginning of June, and many land-use experts believe it will be overturned based on the logic employed in Goldstein. In re Parminder Kaur, however, could be the long invoked hypothetical case by the Court of Appeals that would justify a judicial halt to the condemnation proceedings even if the taking meets constitutional mandates.
The Law and The Kaskel Hypothetical
Reminiscent of the Fifth Amendment, the New York Constitution provides that “private property [shall not] be taken for public use, without just compensation.” Consistent with the Supreme Court’s decision in Berman v. Parker, the state has deemed blight removal, slum clearance, and redevelopment as public uses that would trigger eminent domain. The general test for whether private property is blighted is if the area is “substandard or insanitary” and is determined by an objective study statutorily performed by the Empire State Development Corporation (ESDC), a state entity that liaises between the government and developers.
Continue reading “Overriding Broad Public Use in the Face of Bad Faith Blight: In re Parminder Kaur and Redeveloping Eminent Domain in New York State”