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.