In Kaur v. New York Urban Development Corporation,a close 3-2 decision [HT: Neighborhood Retail Alliance], a New York intermediate appellate court has invalidated the taking of property in the Manhattanville neighborhood of New York City for transfer to Columbia University. Columbia and the government claimed that the land in question was blighted. However, the court ruled that there was no evidence of any real blight (especially before Columbia acquired much of the surrounding area after 2002), other than claims of “underutilization” of property. And mere “underutilization,” the majority concludes, is not enough to justify the condemnation of property as “blighted.” As the court puts it, “[t]he time has come to categorically reject eminent domain takings solely based on underutilization.” I wholeheartedly agree with this general sentiment. Indeed, I have often argued against broad definitions of blight that allow virtually any property to be condemned on the grounds that some other use might lead to increased development (see, e.g., here). Overbroad definitions of blight undercut many of the eminent domain “reform” laws enacted in response to the US Supreme Court’s decision upholding “economic development” takings in Kelo v. City of New London. I also think the majority makes a strong case that the blight determination in this case severely flawed, and in large part the product of the government’s desire to transfer property to a politically influential university. Indeed, I have often criticized Columbia’s plans to use eminent domain in Manhattanville, in a series of posts going back to 2006 (see here for the most recent post, and links to earlier ones).
There is, however, one major problem with the Kaur decision: it seems to contradict the New York Court of Appeals’ (the state supreme court) recent decision in the Atlantic Yards case, Goldstein v. New York Urban Development Corporation, which specifically ruled that a property can be declared blighted and condemned if there was “economic underdevelopment” or “stagnation” in the area. As I explained in this post, Goldstein allows state officials to designate almost any area as blighted and then condemn property within it. As an intermediate appellate court the, Kaur court is required to follow state supreme court rulings. Unfortunately, the Kaur majority barely even mentions Goldstein, except for noting that the same private consultant conducted the study allegedly proving the existence of “blight” in both cases. Perhaps this neglect is explained by the fact that the Atlantic Yards opinion was only issued last week. If so, the Kaur court should have taken more time to fully consider it. The contradiction with Goldstein is in fact noted by the Kaur dissenters, who point out that the state supreme court ruling requires broad deference to administrative blight determinations, even if there is considerable evidence that the determination was flawed.
It might still be possible to invalidate the Manhattanville takings in a way consistent with Goldstein. For example, the Kaur majority based its ruling in part on the fact that the government failed to follow some of the procedural requirements of New York’s blight statute.
However, the central holding of Kaur - that “underutilization” isn’t enough to prove blight – is in clear tension with the Atlantic Yards decision. The fact that the same consultant conducted both blight studies and used similar arguments to justify his findings only accentuates the tension. Indeed, “underutilization” was the main evidence for the existence of blight in the Atlantic Yards project area, as well as in the part of Manhattanville condemned for transfer to Columbia.
In sum, I think that Kaur is a much better reasoned decision than Goldstein (except for its neglect of Goldstein itself). Unfortunately, the court that reached the wrong result is also the higher of the two. Thus, I fear that Kaur may well eventually be overruled by the Court of Appeals. At the very least, the Kaur majority should have taken more time to produce their opinion, and clearly explained why this case differs from Goldstein.
UPDATE: Perhaps it isn’t necessary to point this out. But in the title of the post, I was using “state supreme court” in the colloquial sense in which “supreme court” is used to indicate the highest court of the jurisdiction in question, regardless of its official name. I am well aware that the official name of New York’s supreme court is “Court of Appeals.” Similarly, one can use “head of state” as a generic term referring to the top official in a government, even though the official title may be “president” or “king” or whatever. Using “court of appeals” in the post title would have been confusing, because readers unfamiliar with New York’s strange nomenclature wouldn’t realize that I was referring to state’s highest court.
UPDATE #2: I have fixed an annoying typo in the title of the post.
UPDATE #3: Rick Hills at Prawfsblawg interprets Kaur as striking down the Columbia takings on federal constitutional grounds under Kelo v. City of New London, rather than on the state constitutional ground that there was insufficient proof of blight. Rick argues that the opinion ultimately holds that this is a “pretextual” taking forbidden by Kelo because the true purpose was to benefit Columbia, not alleviate blight. I don’t think this is correct. If the court merely sought to show that the taking failed to meet federal pretext standards, there would have been no need for the extensive discussion of state blight requirements. Moreover, the court at no point specifies that is ruling depends on the federal Constitution and not the state one, and indeed cites both at different times. In any event, the federal justification of the court’s decision is actually much weaker than the state justification. As Rick emphasizes, Kelo is extremely permissive. Moreover, Kelo explicitly focused on “economic development” takings rather than blight condemnations, setting up extremely permissive standards for the former, which are generally viewed as much more problematic than the latter.
dave h says:
I haven’t read the actual rulings, but based on the quotes, could there be a difference between “underutilization” and “underdevelopment” or “stagnation”? The most likely argument, it seems to me, would be that if an area is going largely to waste (underdeveloped or stagnant) then it could be declared blighted. However, if it is productive, but not maximally productive as it would be in another party’s hands (underutilized) then it is not blighted and cannot be taken for this purpose. I admit it’s a stretch, and the fact that they didn’t even address Goldstein indicates that was not their reasoning. Still, stagnation is not the same as underutilization (while underdevelopment – well who knows what that means).
December 3, 2009, 7:45 pmAllan says:
Of course, the title of this post is erroneous, as the NY lowest courts is the Supreme Court. The highest court is the Court of Appeals.
Otherwise, no comment.
December 3, 2009, 8:07 pmGrumpy Old Man says:
They used to say “Urban renewal is negro removal.” It was, and it still is.
December 3, 2009, 8:15 pmJay says:
Allan–Of course, if you read the entire post, you would realize that Prof. Somin is well aware of that, and presumably titled the post as he did so that his point would be more immediately intelligible than if he had written “State Supreme Court Issues Ruling, But May Be Contradicted by Earlier Court of Appeals Case.”
December 3, 2009, 8:36 pmIlya Somin says:
Of course, the title of this post is erroneous, as the NY lowest courts is the Supreme Court. The highest court is the Court of Appeals.
Otherwise, no comment.
I was using supreme court in the colloquial sense of “highest court,” rather than in the technical titular sense. For example, when we say “state supreme courts,” we mean the highest court of each state, regardless of whether it has the official title of “supreme court” or not.
December 3, 2009, 8:37 pmIlya Somin says:
could there be a difference between “underutilization” and “underdevelopment” or “stagnation”? The most likely argument, it seems to me, would be that if an area is going largely to waste (underdeveloped or stagnant) then it could be declared blighted.
“Underdevelopment” does not mean “no development at all.” And in fact the land in the Atlantic Yards case was being used for a wide range of purposes, both residential and commercial. That’s why the blight study in that case had to rely on “underutilization” as the justification for concluding that the area was blighted.
December 3, 2009, 8:39 pmloki13 says:
Can’t catch ‘em all! How dare Rienhardt and his liberal 9th Circuit cronies clearly violate established precedent with their nogoodnik activist judging!
Oh… wait… a lower court went against clearly established precedent to reach a result favorable to libertarian beliefs? The “their clearly reasoned decision” should simply have done a better job distinguishing the precedent.
So it goes…
December 3, 2009, 8:41 pmD says:
I can understand it, but it might be clearer to use “highest court” nevertheless because of New Yorkers’ touchy relationship when writing about their trial courts.
As it stands, New York lawyers basically have to refer to the trial court as Supreme Court without “the” so as not to confuse an appellate court. I really can’t claim any substantial experience in this area, but this has been my experience so far – even when it sounds awkward.
The decision by Supreme Court was reviewed. In this case, Supreme Court’s ruling was reversed by the Appellate Division, and contradicts state supreme court’s decision in the XYZ case.
—-
On other matters – Catterson wears a wicked bow-tie and is regarded by some as a rising star. I have heard that he is angling for the Court of Appeals through his work product.
December 3, 2009, 8:45 pmJB says:
Although the underutilization argument was a major focus of the Kaur opinion, more space by far was devoted to the bad faith and due process problems. Presumably these are solid grounds to distinguish Kaur from Goldstein and allow the judgment to survive on appeal?
December 3, 2009, 9:25 pmTim says:
Kinda late for that once the opinion is already issued, right?
Just hope the Court of Appeals rejects the case and answer the “underutilization” vs. “stagnation” distinction in some later trial case.
December 3, 2009, 9:35 pmNew Pseudonym says:
Are underutilization, underdevelopment and stagnation (presuming for the sake of argument that the concepts are valid) matters of fact or of law in New York?
Just askin’.
December 3, 2009, 10:13 pmJB says:
I don’t understand. Suppose the lower court based its judgment on three main arguments: (1) rejecting underutilization as a sole basis for declaring blight; (2) finding the government acted in bad faith by carrying out fundamentally flawed studies as a pretext for conferring private benefit on Columbia (which Justice Kennedy had earlier pro scribed in his controlling Kelo concurrence); and (3) finding due process violations in the evasion of court orders to release documents and the related premature closing of the public hearing record. Even if Reason #1 conflicts with the higher court’s recent precedent in Goldstein, Reasons #2 and #3 seem like sufficient grounds to uphold the judgment notwithstanding Reason #1.
December 3, 2009, 10:21 pmA. Nonymous says:
Ilya:
The way I always solve the “supreme court” problem is to reference it out as COLR: Court of Last Resort. NY and MD also prove to be problematic for the Conference of Chief Justices given that, technically, the leaders of these COLRs are Chief Judges.
I love New York!
December 3, 2009, 11:01 pmreadery says:
As the court of appeals noted, the studies relied on equated “blight” with underutilization defined as the ratio of buildable floor space to floor space used. In an area zoned for 1 or 2-story buildings, the study found a lot of buildings were 1 story rather than 2 and found this evidence of underutilization and hence blight.
A difficulty with this definition is that if people who have more land associated with their house are considered to be blighting their property, than the greatest blight would be found in the richest parts of surburbia, where large estates would mean a very low ratio of floor space to land.
I don’t think this is inconsistent with Kelo. Kelo didn’t require a finding of blight, but this law does. That requirement has a meaning. The definition of ‘blight’ used in these studies simply doesn’t have any relationship to the ordinary plain meaning of the term, and I don’t think it was inappropriate for the court to so find. No reasonable person could accept a definition of “blight” in which the gardens of large wealthy residential estates are considered to be nothing but pure blight, while crowded tenements without a single blade of grass for lawn are considered optimal non-blight use.
December 3, 2009, 11:08 pmAJK says:
I’d say it’s about as problematic as prosecutors in Illinois, Florida and so forth participating in the National District Attorneys Assocation, ie not at all.
December 3, 2009, 11:08 pmTweets that mention The Volokh Conspiracy » Blog Archive » New York Appellate Court Invalidates Taking of “Blighted” Property for Transfer to Columbia University, but Contradicts State Supreme Court in the Process -- Topsy.com says:
[...] This post was mentioned on Twitter by Armin Rosen, Eugene Volokh. Eugene Volokh said: New York Intermediate Appellate Court Invalidates Taking of “Blighted” Property for Transfer to Columbia Univer.. http://bit.ly/5j6gkv [...]
December 3, 2009, 11:16 pmAllan says:
OK. I guess it is all about usage and audience.
I think the title is ambiguous. I am not sure I buy the explanation for choosing the title that you did. Would you write or say the following?
1. Justice Roberts wrote the opinion for the appellate court. Of course, the Supreme Court is an appellate court, so it would not be incorrect?
2. Texas’s supreme court upheld the death sentence. That would never happen, as it is the Court of Criminal Appeals that rules on death sentences.
I think the post is ambiguous. That is especially so as you use initial caps. So, it is not clear if you a referring to a state supreme court in New York or the State Supreme Court of New York (which is, of course, the Court of Appeals).
I would admit that this particular headline causes difficulties. On the one hand, you might confuse someone unfamiliar with the NY court system if you used technical terms. On the other hand, you might confuse someone familiar with the NY court system (and who would expect you to be as familiar and to use the correct terms) if you write it sensibly.
I wonder what Bryan Garner would have to say on this.
But enough of this. I apologize for the hijacking.
December 4, 2009, 12:01 amDavid Sucher says:
There is an urban design element to this issue which should not be ignored.
Should this decision be upheld Columbia would only be prevented from building a “campus.” It already owns a lot of property in the area and it can build on those parcels. It could build on those parcels as if it was just any other property owner. Yes, the overall feel would not be of a traditional isolated walled tree-shaded “campus.” It would be much more urban with buildings along the street grid etc etc. To my mind that would be a much better and safer (in many ways) solution.
Unfortunately most institutional developers think in terms of a nice clean tabula rasa campus and not how the space they need can fit with an existing city. That’s a pity.
In this case Columbia is held hostage to its view that the way to develop the space it needs (which I do not dispute) is in the form of a “campus.” If Columbia could get rid of that antiquated notion it could be under construction immediately as it owns a great deal of land.
December 4, 2009, 12:21 amDavid Sucher says:
Here is another way to look at it: do you want Columbia’s addition to feel like a Robert Moses “campus?” or a Jane Jacobs “neighborhood?”
DMS
December 4, 2009, 12:25 amColumbia College ’67
readery says:
Well, by the definition of “blight” used in the studies, open space constitutes underutilization and hence represents blight, so Columbia would merely be adding to the blight if it were to add any additional open space by creating a campus enviroment.
December 4, 2009, 1:07 amTim says:
I wasn’t saying you don’t have a legitimate point. What I’m saying is that your analysis, while valid, cannot very well be utilized after they’ve already issued their opinion in the case. Professor Somin doesn’t seem to be arguing that the conclusion should go the other way here, but rather, that the judge erred in not distinguishing higher precedent.
From my limited reading of the facts, it would seem that your outline for the opinion is entirely legitimate and may very well survive appeal. But now that the opinion is issued, it’s a bit late for that bright idea, don’t you think?…
Thus the comment, “At the very least, the Kaur majority should have taken more time to produce their opinion, and clearly explained why this case differs from Goldstein.”
December 4, 2009, 1:14 amElla says:
so wonderful!I like it so much.what is your opinion?
December 4, 2009, 1:40 amdiscount mbt shoes
Norman Oder says:
Here’s some analysis of the effort to reopen the Atlantic Yards case, based on the Columbia decision. Here’s my first post on the Columbia decision, noting comparisons with the Atlantic Yards case. Here’s coverage of the oral argument last May in the Columbia case.
December 4, 2009, 7:34 amYankev says:
It’s been a while since I took Procedure and Con Law, but doesn’t a court “overrule” its own earlier decision, and “reverse” the decision of a lower court?
December 4, 2009, 9:22 amyankee says:
On the terminological issue, I believe the news media deal with this by calling New York’s Court of Appeals the “high court” and its Supreme Court a “trial court.”
December 4, 2009, 10:18 amuberVU - social comments says:
Social comments and analytics for this post…
This post was mentioned on Twitter by arrsdrunktweets: Great analysis of today’s #Manhattanville decision @volokh http://tinyurl.com/yj5efsg...
December 4, 2009, 11:55 ambyomtov says:
I agree with Ilya here that “underutilization” is a very poor standard to use. Among other things, I don’t see how one can determine in a convincing way that a parcel of land is simply underutilized, especially when, as here, the land in question is being used for commercial purposes. “Blight” is a different matter, suggesting to me that little or no worthwhile use is being made, and this is having a negative effect on a larger area.
December 4, 2009, 2:48 pmDavid Sucher says:
If you are really concerned with blight, “abate” it
There is another tool which government has to control “blight.” It doesn’t cost nearly as much as purchasing the land and so far as I understand, it can be very very effective. It’s called abatement. There is little doubt that a local government can use abatement if it wants to.
Of course the standard for forcing someone to abate the nuisance they are creating requires some real facts and not merely hand-waving claims. So it is not as useful for institutions and organizations which wish to get land cheap or without having to bother with capitalism.
“Blight” is a make-weight to justify eminent domain and I don’t believe that it is almost ever used sincerely or intelligently.
“Underutilization” is even more absurd since in our society we have a tradition of letting the market decide when to develop property.
December 4, 2009, 5:09 pmColumbia’s land theft blocked « Internet Scofflaw says:
[...] a New York State appellate court has blocked the scheme, ruling that there is no evidence of any real blight. I’m glad to see [...]
December 5, 2009, 2:04 pmEdward A. Hoffman says:
Columbia’s actual plans don’t call for a walled campus at all. Instead, the university plans to leave all the existing cross-streets in place and even widen the sidewalks, easing access to a newly-developed waterfront park just to the west. The plans also include a park-like open area in the middle which would be open to anyone. The plans call for the first two floors of buildings on major streets to include shops, restaurants, etc. that would cater to the needs of the community as well as the university.
And one of the main reasons it wants all of the land was so it can build a large underground complex beneath the entire area — something that is hard to do when scattered individual parcels can’t be incorporated into the project.
This has no bearing on whether the court was right or wrong. I’m just writing to correct a common misconception about what Columbia wants to do.
December 5, 2009, 7:19 pmDavid Sucher says:
Edward Hoffman. Thanks That’s interesting and I am glad to hear that the plan is to keep the street grid..
December 5, 2009, 9:06 pmLet me look into this issue of the “large underground complex.” That’s a twist. I wonder if this basement has to be 17 contiguous acres in area.
David Sucher says:
Thanks again Edward Hoffman. I took a look at the links you provide and I have to say that including a “continuous basement” was an extremely astute gambit. It seeks to justify the acquisition of all 17 acres as a means of actually increasing the street-level activity of the area. In fact it appears as if the justification for the 17 acre assemblage turns on the need for this “continuous basement.” A remarkable claim.
The link says:
In a classic New York mixed-use public space like Rockefeller Center, it’s possible to see how providing a unified underground space for parking, truck loading and support services allows for a virtually unbroken line of street-level activity and publicly accessible open space that draws people and constant activity.
That strikes me as disingenuous as it’s also possible to see the same thing — ” unbroken line of street-level activity and publicly accessible open space” — in neighborhoods in which the unit of construction is the 30′ wide lot.
Nevertheless, some of the claims require detailed examination. For example, the link claims that “The contiguous basement is an essential element of the pedestrian-friendly urban…Without the contiguous basement, the University would only be able to construct from 31% to 65% of the space called for under this long-term plan.”
I’d like to see the analysis as it seems rather hard to grasp why that should be so. After all a basement of 17 acres is huge. Surely the economy of scale doesn’t need anything like that to make gains in square footage.
I thank you again for your links and I am fascinated, though not at all convinced. I wonder if the need for such large below-grade space is related to bio-med labs/research that needs extra security and invisibility etc etc. If there was some way to get access to the detailed analysis to back up these various claims I would enjoy reading them. (Hey! Everyone has their eccentricities.)
(Btw, the materials that I saw ignore what happens under the street right-of-way itself but I assume that is to be handled by some sort of “perpetual street use permit” to allow Columbia to use the below-grade portion of the street with the street surface — then to be a deck — being replaced after construction.)
December 6, 2009, 2:21 amIlya Somin says:
Suppose the lower court based its judgment on three main arguments: (1) rejecting underutilization as a sole basis for declaring blight; (2) finding the government acted in bad faith by carrying out fundamentally flawed studies as a pretext for conferring private benefit on Columbia (which Justice Kennedy had earlier pro scribed in his controlling Kelo concurrence); and (3) finding due process violations in the evasion of court orders to release documents and the related premature closing of the public hearing record. Even if Reason #1 conflicts with the higher court’s recent precedent in Goldstein, Reasons #2 and #3 seem like sufficient grounds to uphold the judgment notwithstanding Reason #1.
Unfortunately, Reason 2 doesn’t work because 1) Kennedy’s opinion wasn’t controlling (he also joined the 5 justice majority opinion), 2) Kelo addressed “eocnomic development” condemnations, not blight takings, and 3) the blight studies in this case were very similar to those relied on in Atlantic Yards, which was upheld by the Goldstein court. Also, the Kaur court never actually says that it is striking down the taking on federal rather than state constitutional grounds.
Regarding 3, I agree it might be an independent ground for the decision, as I noted in the post.
December 6, 2009, 3:38 amEdward A. Hoffman says:
The planned underground complex would be seven stories deep, which adds up to a lot of space. A lot of it would be devoted to parking garages and loading docks, which require access ramps and large amounts of continuous space. It’s hard to build a garage piece-by-piece unless you know from the beginning where you will be able to put the ramps.
And the claim is not disingenuous at all. While you’re right that conventional cityscapes offer storefronts, etc., along one side of a building, the opposite side generally is used for trash, loading docks, etc. and thus quite unpleasant. Columbia proposes to put all of this underground, so that the buildings will generally be pedestrian-friendly on all four sides. If it has to put support services like that above ground, they will become part of most of the new buildings and will make the area less user-friendly.
If CU can’t put these facilities underground it will have to put many of them above ground, which will mean taking above-ground space away from other planned uses. The community isn’t likely to accept (and the city might not approve) any design changes that call for bigger buildings, so such compromises will be inevitable if this decision stands.
Afaik, the labs you refer to are to be placed above ground. Putting them underground would make them vulnerable to flooding, which could pose a public health risk. There would be a lot of laboratory support facilities below grade, though; the link I provided shows them filling an area four blocks long on the eastern edge of the complex. A lot of that will have to be build above ground if the overall plan has to be extensively modified.
December 6, 2009, 5:09 pmreadery says:
With all this said, it’s worth pointing out that general-education schools and colleges are traditional public uses under a much narrower conception of “public use” than Kelo. For this reason, it’s not clear to me that Columbia would be the ideal case for opposition to eminent domain.
With a legitimate public use, there’s no inherent need to resort to subterfuges like pretending the area is blighted.
December 6, 2009, 9:41 pmDavid Sucher says:
Seven stories underground! That is fantastic. (I don’t mean good or bad — just amazing.)
But the heart of the matter is that the test for using eminent domain is not whether powers gained by it would or might improve a project.
So far as I understand the law, such a criterion is — whether using eminent domain can improve a project — is simply not relevant. In fact I don’t think that mere feasibility is a test i.e. the fact that a project might not be possible at all without using eminent domain is not a consideration at law.
Maybe I am wrong but if you start including feasibility then the courts would have to act, effectively, as architects and contractors and get involved in second-guessing design to determine if in fact a project was possible without eminent domain. I think courts want to go in exactly the opposite direction — not get into the job of local governmental agencies.
December 7, 2009, 1:05 amDavid Sucher says:
I wasn’t clear enough. My point is that I think that law is (and should be) that it’s not relevant if Columbia can’t do the seven story excavation unless it gets all 17 acres.
If feasibility were relevant then agencies would have projects designed so as to require eminent domain — not be feasible, as I gather is claimed here by Columbia, because the design requires all 17 contiguous acres to build a seven story basement — and they’d win in court “by design” rather than “by law.”
December 7, 2009, 1:10 amEdward A. Hoffman says:
I basically agree with you on the law. As I said in my original comment, “This has no bearing on whether the court was right or wrong. I’m just writing to correct a common misconception about what Columbia wants to do.”
December 7, 2009, 1:22 amDavid Sucher says:
Thanks, Edward.
I do see your points about the advantages of the underground servicing but we’ve gotten along fine and created marvelous urban environments without putting everything underground. As on example, one advantage claimed by Columbia for its design is that can decrease number of curb cuts from 18 to 6. (I think I remember correctly.)
Well, spread out over 17 acres (roughly 17 blocks in most cities) 18 curb cuts is still just about one per acre which is trivial. The claimed advantage is just not there.
Anyway thanks for the info.
December 7, 2009, 12:20 pmDavid Sucher says:
Say, Edward, if you are (or anyone is) still reading, I just thought of something which if I am correct adds some humor to this conversation:
Though Rockefeller Center’s success as an urban space is being used to justify Columbia’s plan, let’s not forget that Rockefeller Center did not use (I am pretty sure) eminent domain. It didn’t have eminent domain available. I am about to read Okrent’s book on The Center and I’ll see if I have it right. From what I read at the Atlantic Yards blog, it appears that the Riockefeller’s were sanguine about hold-outs and simply built around them.
Just some food for thought about the necessity for eminent domain from a practical pperspective.
December 8, 2009, 2:44 amEdward A. Hoffman says:
Rockefeller Center didn’t buy its land at all. It leased the property instead — from Columbia, which had been located there before it moved to its current campus ca. 1898. The university held onto the land until the mid-80s as part of its investment portfolio.
The complex was expanded over the years, and there may have been holdouts at some points during that process. But they weren’t an obstacle to the original development.
December 8, 2009, 11:26 amBenjamin Hemric says:
Regarding holdouts, eminent domain, Columbia University and the development of Rockefeller Center
(I meant to post this comment a while back, but didn’t get the chance.)
While perhaps not directly pertinent to the legal issues involved, I believe there are a number of large-scale developments in New York City that help illustrate the idea that eminent domain is not only not necessary for the construction of successful large-scale “economic development” projects, but that it is actually, instead, a needless “drug” for developers (and politicians) that is more likely to hurt projects (and cities) rather than help them. I think Rockefeller Center is a good example.
If I remember correctly, according to Daniel Okrent’s account in his book, “Great Fortune,” one can say the following about the development of Rockefeller Center:
[1] Despite the fact that a large part of Rockefeller Center was built on land leased from Columbia University, the Rockefellers nevertheless did have a good number of holdout problems — this was especially true with the land along Sixth Avenue, which Columbia University did not own. (Two famous Sixth Avenue holdouts, the anachronistic row houses on either side of the GE Building (nee RCA Building), were only purchased by Rockefeller Center many, many years later.) And in order to build the center in a timely and economic fashion, the Rockefellers also had to buy out a great number of tenant subleases — and, again, here too, they also had holdout problems. Among the cases of sublease holdouts, probably the biggest holdout was one of NYC’s most prominent attorneys (a Columbia University alumnus who was being courted as donor by the landowner) who was able to hold out until his death many years later, substantially altering the center’s design (for the better, as it turns out).
[2] Rockefeller Center involved the construction of an enormous, multi-block basement which contains not only the famous underground pedestrian streets and shops, etc., but also an extensive underground service area (with off-street truck loading docks, etc.).
[3] Given the intellectual climate of the time, it seems highly unlikely that the Rockefellers would have asked for, or have been granted, government help in dealing with holdouts — despite the fact that Rockefeller Center was an enormous project of great importance to NYC, especially during the Great Depression!
[4] I would argue, and have argued in the past (see links below), that Rockefeller Center is actually a better development BECAUSE it was not the recipient of government aid in “solving” its holdout problems. (In other words, as David Sucher correctly points out, such a development is less Robert Moses like and more Jane Jacobs like.)
- – - – - – -
About two years ago, Lee Bollinger, the president of Columbia University, gave a presentation at a Municipal Art Society event entitled, “When the Big Get Bigger: New York’s Universities and Their Neighborhoods.” Although the event was part of a series of panel discussions meant to honor Jane Jacobs, like the other three panel discussions that I attended, little of what was said at the event actually related to what Jane Jacobs wrote or said. (People mostly discussed, instead, what has been written and said about Jacobs by others.) So, in a way, it was not surprising that Bollinger did not explicitly discuss his apparent differences with Jacobs: Bollinger believes unified ownership creates great urban places; Jacobs believes that diversified ownership (and uses) creates great urban places.
- – - – - -
Here’s the URL to the “City Room” blog post (on the “New York Times” website) about the event. It is from November 16, 2007, and is entitled “When the Gown Devours the Town.” (My comment is #8):
http://cityroom.blogs.nytimes.com/2007/11/16/when-the-gown-devours-the-town/
Here’s the URL to the Norman Oder’s “Atlantic Yards Report” blog post (and my comments) about the event. It is from November 7, 2007 and is entitled, “When the Big Get Bigger.”:
http://atlanticyardsreport.blogspot.com/2007/11/when-big-get-bigger-unresolved.html
December 12, 2009, 5:06 pmBenjamin Hemric says:
A commonsense definition of “blight”
While, again, this may not be directly pertinent to the legal issues involved, I think it is nevertheless useful (in terms of a policy discussion) to think about what might be a commonsense definition of “blight.”
I think one of the hallmarks of blight, using a commonsense definition of the term, is that it’s a condition (e.g., a standard of upkeep, a use, etc.) that discourages private investment in surrounding properties and is, thus, something that lowers the property values (e.g., makes them lower than they were before the appearance of blight) of surrounding properties. Using such a commonsense definition of blight, properties that housed adult uses in Times Square would seem to be examples of true blight, while the surrounding properties that were the victims of this blight would not be examples of blight. Therefore, there would seem to be at least some legitimacy in condemning the adult use properties, while not condemning the properties that were the victims of the blight. (Although, even here, I think various non-eminent domain approaches could have been just as useful, or even more useful.)
It seems to me that in using a commonsense definition of blight, the properties that surround the Vanderbilt Rail Yards which are coveted for the Atlantic Yards project are not blighted. As I understand it, these properties have been receiving quite a bit of private investment and have been increasing (greatly increasing?) in value in recent years, even prior to the Atlantic Yards proposal. The same would seem to hold true, although to a lesser degree, with the properties involved in the Columbia University and Willets Point proposals.
December 12, 2009, 8:25 pmThe Volokh Conspiracy » Blog Archive » George Will on “Blight” Condemnations in New York says:
[...] I discussed the state high court decision upholding the Atlantic Yards condemnations in this post. For my earlier analyses of the case, see here and here. Will’s column also discusses the recent court decision striking down Columbia University’s efforts to use eminent domain to acquire supposedly “blighted” property, a case I discussed here. [...]
January 4, 2010, 8:58 pmThe Volokh Conspiracy » Blog Archive » Nicole Gelinas on Blight Condemnations in New York says:
[...] I have written about both extensively. See here for my analysis of the Atlantic Yards decision, and here for the Columbia case. Both posts include links to earlier [...]
February 25, 2010, 7:55 pmNew York High Court Oral Argument in Columbia Eminent Domain Case | theConstitutional.org says:
[...] influential businesses and other interest groups. At the same time, for reasons I discussed here, I am not optimistic that the Court of Appeals will uphold the lower court’s [...]
June 3, 2010, 2:01 amNew York High Court Upholds Columbia University Takings | theConstitutional.org says:
[...] area of New York City for transfer to Columbia University. This outcome is not surprising. In fact, I predicted it back in December. In the recent Atlantic Yards case, the Court of Appeals had already held that state and local [...]
June 26, 2010, 4:18 am