The last property owner in the condemned Atlantic Yards area of Brooklyn, New York has agreed to sell his land in order to avoid the condemnation of his property by the city government [HT: Josh Blackman]:
The last man standing in front of the Atlantic Yards bulldozer has stepped aside.
Daniel Goldstein — founder of the anti-Atlantic Yards group Develop Don’t Destroy Brooklyn and plaintiff in numerous unsuccessful suits against the $4.9 billion project — has reached an agreement with the project’s developer, Forest City Ratner, to move out of his condo on Pacific Street in Prospect Heights.
Mr. Goldstein confirmed that he would receive $3 million from Forest City. He bought his condo in 2003 for $590,000, but the state seized title to it under eminent domain last month, leaving Mr. Goldstein facing eviction. Mr. Goldstein said he would move by May 7.
He had told The Brooklyn Paper in an article published Wednesday morning that his lawyer would fight the condemnation or “get fair market value and just compensation” for the apartment, as eminent domain law requires when the state seizes property. He had said the state had previously made a lowball offer of $510,000 to him.
Goldstein may have received a higher than market value price for his land in exchange for agreeing not to speak out against the development project anymore:
According to executives who have been briefed on the negotiations, Mr. Goldstein also agreed to a highly modified form of the gag agreement that Forest City had initially imposed on those it bought out, under which he would step down as spokesman for Develop Don’t Destroy Brooklyn.
Mr. Goldstein said that he retains his right to free speech but is no longer allowed to “actively oppose the project.”
“There’s no end to the criticism and opposition to the project,” he said.
The release from Forest City was short on specifics and did not even speak Mr. Goldstein’s name.
“We are not going to discuss the details of the agreement,” Joe DePlasco, a spokesman for the developer, said in the statement.
Goldstein’s land and a great deal of other property in the area was condemned in order to transfer it to politically influential developer Bruce Ratner, under an extremely dubious rationale of alleviating “blight.” I criticized the recent New York state supreme court decision upholding the condemnation in this post; back in 2008, I commented on the federal court decision upholding the condemnation against challenges under the Takings Clause of the federal Constitution.
In my view, that federal decision was probably dictated by the Supreme Court’s 2005 decision upholding economic development takings in Kelo v. City of New London. The state decision, by contrast, was deeply flawed because it was based on a ridiculously broad definition of “blight” according to which virtually any area could be declared blighted and condemned; for reasons I explicate in my earlier post, such blight condemnations almost certainly violate the New York state constitution. Unfortunately, many other states also define “blight” just as broadly. Ultra-expansive definitions of blight have undermined the effectiveness of the majority of the many eminent domain reform statutes enacted since Kelo.
On the plus side, Goldstein’s dogged resistance to these condemnations helped focus public attention on the problem of eminent domain abuse. The state court decision upholding it is an important setback for property rights. However, many other state courts have gone the other way over the last 15 years. During that time, numerous state supreme courts have invalidated Keo-like “economic development” takings under their state constitutions – including Illinois, Michigan, Montana, Ohio, Oklahoma, and South Carolina (see this article for cites to these cases). Only the Atlantic Yards case and the Connecticut Supreme Court’s narrow 4-3 decision in Kelo itself have gone the other way.
UPDATE: Please don’t bother pointing out that the New York state supreme court is officially called the Court of Appeals. I know this, and was using the term “supreme court” as a generic term for the highest court of a jurisdiction. That way, I can avoid confusing readers who are not familiar with New York’s extremely confusing terminology.
UPDATE #2: Goldstein has issued this statement about the agreement, in which he denies agreeing to stop criticizing the Atlantic Yards takings and development project [HT: Scott Bullock]:
Contrary to press reports I have not given up my First Amendment rights or my involvement with Develop Don’t Destroy Brooklyn. (Ratner, though he tried to hide it, did require this of nearly all those who sold their homes to him years ago, and they agreed to it.) Ratner and ESDC tried very hard to force me to agree to give up those rights and the work I do with the organization I helped found. It wasn’t enough, I guess, for Ratner to decimate my neighborhood, take my home, and kick me out, they also felt they had to cut out my tongue. For nearly 3 hours of talks mediated by Judge Gerges I refused to accept any kind of gag order. I would not have taken any amount of money to do that, and I did not.
I did agree to give up my title as “DDDB spokesman”, but that’s just a title. And I did agree to remove my name from one outstanding lawsuit which remains in court despite that. Otherwise I can do and say whatever else I want, and my agreement explicitly states that I have maintained my First Amendment rights.
Anonymous in Texous says:
I must say thank you for calling the New York Court of Appeals the Supreme Court, it is much easier to recognize than it’s normal personal name. I know in Texas we have two “Supreme Courts” the Supreme Court which handles civil appeals, and the Court of Criminal Appeals. I don’t expect anyone to actually know that and having one name makes it much easier for everyone.
April 21, 2010, 11:45 pmOpenVolokh says:
(1) Don’t call it the state supreme court! This is confusing to lawyers. I thought you were talking about a lower court decision when you said this New York supreme court decision. Instead, call it New York’s highest court. That would be clear to lawyers (all of whom will probably know that the the Court of Appeal is New York’s highest court, even if they do not practice in New York) and non-lawyers a like. Calling it a New York state supreme court might be clear to non-lawyers, but confuses lawyers. What are we lawyers? Chopped liver!??
If you must use the confusing terminology, at least use the article “the” as in “the” New York Supreme Court decision. But, why even bother. Just say New York’s highest court!
(2) If the definition of blight is too broad, would you be in favor of a more realistic definition? Or is your real problem with the concept of blight justifying takings as much as the definition?
April 21, 2010, 11:46 pmOpenVolokh says:
The highest court works for Texas too! You might even say, the highest Texas court for criminal matters if you want to be more specific. If you use the term Court of Criminal Appeals, then you are going to confuse BOTH lawyers and non-lawyers not familiar with Texas.
April 21, 2010, 11:50 pmOpenVolokh says:
Oh, another alternative for New York is of course:
the Court of Appeals, New York’s highest court.
Or
the Court of Appeals, New York’s supreme court.
But DO NOT talk about a “New York supreme court decision.” For all I know, you screwed up on capitalization rather than are talking about “supreme court” in a generic rather than specific sense.
April 21, 2010, 11:52 pmAnonsters says:
Sorry if this is obtuse, but:
Doesn’t the NY Ct of Appeals upholding it mean that it doesn’t “almost certainly violate the New York state constitution,” at least under existing NY law?
April 22, 2010, 12:05 amNunzio says:
Mr. Goldstein ended up with a pot of gold. A 500 percent return on investment in 7 years. Minus attorneys fees.
April 22, 2010, 12:27 amOpenVolokh says:
He obviously means this in a normative sense. As in, if New York’s highest court were interpreted as I think it SHOULD be, then this action is almost certainly unconstitutional.
I will say that this is especially confusing though. Saying “almost certainly” sounds as though he is talking about something “objective” and out there. (Like how the New York Court of Appeals actually rules.) Is it true that if the New York constitution were interpreted according to IS’s preferences, that the taking is “almost certainly” unconstitutional or is it “certainly” unconstitutional. And, if IS does mean “almost certainly” and not certainly, it would be interesting if he discussed the uncertainty that is the source of the word “almost.”
April 22, 2010, 12:56 amIlya Somin says:
Doesn’t the NY Ct of Appeals upholding it mean that it doesn’t “almost certainly violate the New York state constitution,” at least under existing NY law?
I was referring to the actual text and original meaning of the state constitution, which I discussed n more detail in the linked post. I think that’s pretty obvious from the context of the post.
April 22, 2010, 2:51 amIlya Somin says:
Saying “almost certainly” sounds as though he is talking about something “objective” and out there.
Yes. The “objective” thing “out there” is the actual text of the New York constitution.
April 22, 2010, 2:52 amOpenVolokh says:
Ilya,
Curious. Original public meaning of the text? Or original understanding? Or both? What weight do you give contrary precedent?
April 22, 2010, 3:24 amBrett Bellmore says:
A lot of people in the legal community are committed to denying that the text of constitutions constitutes something “objective” “out there”. I suspect because, if it does, they might have to admit the government is objectively violating it.
April 22, 2010, 6:13 amShag from Brookline says:
If this is the case:
“Goldstein may have received a higher than market value price for his land in exchange for agreeing not to speak out against the development project anymore: …. ”
do taxpayers (with standing, of course) have a complaint with the taking authority to the extent of the higher payment? Also, if a portion of the award is for the gag, should that portion be treated as ordinary versus capital gains income?
April 22, 2010, 6:57 amKharn says:
I’d love to hear an explaination of how a $500+k condo is blighted. Vacant $150k foreclosure turned into a crackhouse by vagrants? Sure, that is blight, but not this mess.
April 22, 2010, 7:28 amFloridan says:
I think your headline is misleading. Given the amount of money Mr. Goldstein received for his apartment, it doesn’t sound like he settled under duress.
I’m sure he would have taken a $3 million offer for his property even without the threat of condemnation.
April 22, 2010, 7:47 amSara says:
“agrees to sell land”
Did he own any land, or only a real interest in the fixed improvement (condo), as is often the case in a condo development?
Agree that you can’t call it the supreme court because in NY there is another such.
April 22, 2010, 8:48 amBob from Ohio says:
Goldstein = Ashley Dupree?
April 22, 2010, 9:51 amAdam J says:
Kharn- Disturbingly, the state used its own rundown Atlantic trainyard as evidence of blight in the area. Of course, other then that eyesore, the area is quite nice.
April 22, 2010, 9:56 amAdam J says:
Checking at Don’t Destroy Brooklyn’s website indicates that Goldstein “gag order” only requires him step down as spokesman for DDDB and remove his name from a lawsuit… and explicitly states that he has preserved his 1st amendment right. Doesn’t sound like much of a gag to me.
April 22, 2010, 10:01 amOrenWithAnE says:
I’m crying crocodile tears for his 500% return. If only Madoff had invested in soome-to-be-condemned property …
April 22, 2010, 10:27 amawp says:
OpenVolokh says:
(2) If the definition of blight is too broad, would you be in favor of a more realistic definition? Or is your real problem with the concept of blight justifying takings as much as the definition?
Blight is almost always used to mean “I think I know what would be better for this neighborhood” or “someone donated a lot of money for me to call it blighted.”
We already have objective definitions of “blight” and mechanisms to seize those properties.
abandoned properties will eventually be seized for non payment of taxes
unsafe properties
can be condemned due to physically dangerous condition of the house
don’t we use asset forfeiture for locations that become focuses of criminal activity
other than objective cases condemning property as blighted is either politically motivated or a politician’s subjective belief that he knows the higher value use.
April 22, 2010, 11:28 amZathras says:
We do? Where?
Come to Detroit. There are thousands of houses where the taxes are a couple of dollars a year (so no tax forfeitures) and are not immediately about the fall down. Yet I think just about everyone will agree that those areas of Detroit are blighted.
April 22, 2010, 12:58 pmfwb says:
The problem still exists that the Courts were absolutely incorrect and absolutely out of their jurisdiction when the courts redefined “public use”. The Courts are subordinate to the Constitution and cannot legitimately define, redefine, or interpret any word, clause, or phrase. The Courts have stolen the rightful power of We the People and have subjected us to tyrannical abuse.
April 22, 2010, 1:25 pmOpenVolokh says:
Name one!
Thank goodness a lot of conservatives are smarter than you.
April 22, 2010, 2:03 pmOpenVolokh says:
Bah. That last comment was too mean. I mean not that they are necessarily smarter, but that they have a much more thoughtful understanding.
April 22, 2010, 2:06 pmOpenVolokh says:
And your understanding of the legal meaning of the phrase “public use” comes from how many hours of research? Do you mind sharing citations to the authority that led you to this thoughtful conclusion?
April 22, 2010, 2:11 pmPersonFromPorlock says:
An interesting notion, tied to reality through the practice of ‘lip service’….
April 22, 2010, 3:01 pmOpenVolokh says:
Yeah, because fwb is clearly right that courts aren’t supposed to “interpret” the Constitution. The worst decision ever is Marbury v. Madison!
April 22, 2010, 4:01 pmTatil says:
I was under the impression that courts did not redefine, but just accepted the definition picked by our elected representatives. :)
April 22, 2010, 8:43 pmawp says:
I should have added a third possible motivation to blight designation. The ability to get around the due process requirements of a rightful condemnation or taking.
Zathras,
There is certainly going to be less righteous indignation, or would be, if areas a politician or bureaucrat designated as “blighted” were actually blighted. Unfortunately, the first two motivations hardly ever apply to areas that “just about everyone will agree ….. are blighted”.
April 23, 2010, 3:14 amBrett Bellmore says:
Yes, and the prices of those houses is so low, (Which is why the taxes are so low.) that nobody who actually had a better use for the land would have any difficulty buying them without condemnation.
In some cases, it’s widely understood in the area, the reason the property values are so low is that a former administration was in the habit of deliberately arranging for areas it might some day want to condemn to become blighted, by cutting off public services. (Saved money two different ways!) After the deals the condemnations were planned for fell through, the areas never recovered.
April 23, 2010, 6:47 ambyomtov says:
I’m crying crocodile tears for his 500% return. If only Madoff had invested in soome-to-be-condemned property …
Mr. Goldstein ended up with a pot of gold. A 500 percent return on investment in 7 years. Minus attorneys fees.
If commenters are going to crab about the name of the court, I’m going to crab about the fact that it’s a 400% (+) return, not 500%. If you double your money in an investment that’s a 100% return, not 200%. Go from there.
April 24, 2010, 8:10 pmawp says:
OpenVolokh says:
“fwb: The problem still exists that …………….
And your understanding of the legal meaning of the phrase “public use” comes from how many hours of research? Do you mind sharing citations to the authority that led you to this thoughtful conclusion?”
I think it should be a rule that if you are going to bitch about another person not providing citations to support his point, you automatically have to provide citations to support your disagreement.
I mean seriously who expects anyone to actually look up case law or journal articles just to post a comment on a blog.
April 25, 2010, 3:14 pm