The New York Court of Appeals (which, despite the misleading name, is New York’s state supreme court), held oral arguments yesterday in Kaur v. New York Urban Development Corporation, the case in which New York City is trying to condemn a large amount of property in the Manhattanville neighborhood in order to transfer it to Columbia University. The Columbia Spectator has an interesting summary of the oral argument here.
Columbia and the government’s Urban Development Corporation are claiming that the property can be taken because it is “blighted.” However, a lower court decision recently invalidated the takings because that the studies that supposedly prove the existence of blight are flawed and may have been deliberately cooked up to justify a bogus taking.
I have been very critical of both the Columbia takings specifically (see here for the most recent post and links to earlier ones), and the more general use of broad definitions of “blight” to justify condemnation of virtually any property that might be coveted by politically 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 decision.
In the recent Atlantic Yards case, the court endorsed the constitutionality of condemnations under an extremely broad definition of “blight” that would allow the taking of any property that might be “underdeveloped.” I think the Atlantic Yards decision was badly misguided. Among other things, it grossly misinterpreted the blight provision New York’s state constitution, which only allows condemnation of “substandard an insanitary” areas. Nonetheless, it is difficult to distinguish the Atlantic Yards case from Kaur. However, the Spectator’s description of the oral argument suggests that the judges were tough on both sides, which may indicate that they have some skepticism about the government’s position.
The issue of broad definitions of “blight” is not limited to New York. It undermines protection for property rights in many other states as well. Since the Supreme Court’s controversial decision in Kelo v. City of New London, some 43 states have enacted laws banning or limiting the condemnation of private property for transfer to other private individuals in order to promote “economic development.” Unfortunately, as I explained at length in this article, most of these states’ laws define blight so broadly that virtually any area can still be designated as blighted and condemned. In other words, any property that government might want to take under an “economic development” rationale can instead be taken under a blight rationale.
UPDATE: NYU lawprof Rick Hills comments on the case and the more general questions it raises here. I disagree with several of Rick’s points and will try to address them in a later post, time permitting.
Repeal 16-17 says:
In the State of New York, Kelo is a redundancy. Columbia University has already won this case. All that is left is the writing of the opinions.
June 2, 2010, 3:49 pmBill Raftery says:
I find it much easier to simply refer to such appellate courts as “courts of last resort” to avoid this problem and the same with Maryland’s Court of Appeals. Moreover, saying “is New York’s state supreme court” doubles the problem, because the New York State Supreme Court is a trial court of general jurisdiction in the state.
June 2, 2010, 4:01 pmSammy Finkelman says:
>>> The New York Court of Appeals (which, despite the misleading name, is New York’s state supreme court),
New York State does have a Supreme Court, but it is on the third and lowest level of teh state court system.
http://www.law.syr.edu/media/documents/2008/2/IntroCourts.pdf
See diagram on page 7.
We may also soon have a real “Tea” Party, as a man called Carl Palladino is apparently thinking of running fior Governor under that banner.
June 2, 2010, 4:06 pmDavid M. Nieporent says:
Wouldn’t “highest court” be simpler and just as clear?
June 2, 2010, 4:26 pmrachel says:
One person’s blight is another’s period building, vintage streetscape, or perfectly functional buildings that property owners and tenants wish to keep.
“Blight” is just another way of saying golden opportunity to a pol or developer and better luck next time to the less powerful rightful owner and occupant.
June 2, 2010, 4:37 pmOrenWithAnE says:
Prof. Hills points about the difficulties of assembling fragmented plots and the resulting economic inefficiency ought to be given serious thought (and I would love to hear Ilya’s thoughts on that).
His proposed solution, on the other hand, is not so compelling …
June 2, 2010, 4:39 pmOrenWithAnE says:
The claim is that if those owners (who represent the tenants) were capable of perfect bargaining, they would not.
June 2, 2010, 4:41 pmkrs says:
“the New York State Supreme Court is a trial court of general jurisdiction in the state”
doesn’t sound very supreme to me.
June 2, 2010, 4:45 pmRichard Nieporent says:
Oh, who owns New York!
June 2, 2010, 4:54 pmOh, who owns New York!
Oh, who owns New York!
Some people say —
Why, we own New York!
Why, we own New York!
Who? C-O-L-U-M-B-I-A!
Urso says:
Right. In New Orleans there’s a group of historical preservation fundamentalists raising holy hell about a bunch of genuinely blighted buildings being torn down to build a VA hospital (which is much more in line with the purposes of eminent domain than so Columbia trust babies can have new posh dorm rooms). But just because the buildings are old, doesn’t mean they’re historical.
June 2, 2010, 4:59 pmfwb says:
Regardless of the lies of the judges, public use is USE, not benefit, not improvement for taxes, nada. The Framers are spinning in their graves at the lies the judiciary of today uses to STEAL private real property. Anyone who has read the decisions of the 19th century knows that the courts repeatedly stated taking from one private party to give to another private party was unconstitutional.
Kelo was a lie. And all the other decisions are thefts of private property by fiat.
Tiocfaidh ar la! (Our day will come!)
June 2, 2010, 5:14 pmDavid Welker says:
I think “highest court” is perfect. Better than supreme court (even in lower case) in my opinion. Of course, I do not think that there was any ambiguity this time with Mr. Somin’s post, as it was quite clear that he was talking about a singular rather than a plural with respect to New York’s “supreme court.” I still think highest court is better, though.
June 2, 2010, 5:41 pmSteve says:
Anyone who has read the decisions of the 19th century knows that the courts repeatedly stated taking from one private party to give to another private party was unconstitutional.
Other than private railroad companies, private turnpike companies, private canal companies, private textile plants, private mining companies, and private companies engaged in irrigation and drainage efforts, your statement is just about correct, historically.
June 2, 2010, 5:53 pmManju says:
When this news first hit the wires I took a run up to the disputed area and can now offically report back that there’s no blight in sight. I did find huge empty flight of stairs (a little north of the war zone) which i used to work my legs and buttocks before returning to the zone where I found a cool spanish restaurant and proceeded to toss back some cold ones. I must confess I did pee outside, leaving the area worse than how I found it, so things may have changed to be fair to the colonizer, Columbus University.
June 2, 2010, 6:04 pmManju says:
Not bad. However, I think “inebriated court” is less ambiguous.
June 2, 2010, 6:19 pmrachel says:
Urso, you’re shadow boxing. I didn’t say what you imply, that every old building is in good repair and lovely or historical and thus to be saved. I still favor owners’ rights over the all too often abused exercise of eminent domain.
If there is a public good to be achieved by extensive tear-down of an area, then make the case and offer good money, or work around the hold-outs.
Imho.
June 2, 2010, 6:41 pmBill Raftery says:
It would, except that in Texas and Oklahoma, there are two “highest courts”: Supreme (civil) and Court of Criminal Appeals. Thus, it is better to describe the status as “court of last resort” and quantify in the case of TX and OK civil vs. criminal.
June 2, 2010, 8:48 pmBill Raftery says:
It was the supreme trial court for the state under the 1777 Constitution. It also possessed appellate jurisdiction for all lower courts, subject only to review by “The Court for the trial of impeachments and the correction of errors” (yes, that was the name). consisting of the Senate and the state’s chancellor, and judges of the Supreme Court. There was a law review article several years ago that took the position that Supreme meant “court of universal jurisdiction in a state” rather than “highest court”. It also puts Maryland’s name (Court of Appeals for its COLR) and court structure in context, too.
June 2, 2010, 8:53 pmDavid Welker says:
“highest court” for criminal matters
“highest court” for civil matters
versus
“court of last resort” for criminal matters
“court of last resort” for civil matters
Sorry. The phrase “highest court” beats “court of last resort.”
The Texas has a Supreme Court, but that court doesn’t deal with criminal matters, is yet another reason to prefer “highest court” over “supreme court” though.
June 2, 2010, 10:18 pmUrso says:
I thought I was agreeing with you!
It’s easy to say this as a general principle. But when owners have left damaged, gutted houses five years after the storm, and the city desperately needs a new VA hospital, in my opinion the city wins. If the owners were really that concerned about their property, they’d fix the houses.
June 3, 2010, 11:07 amrachel says:
The we agree, Urso, that owners should be required to fix their damaged and/or abandoned properties- for safety and public nuisance concerns? I don’t know specifically re the historic value of the buildings/ area and whether the proposed location of the VA hospital is best or more politically profitable.
It’s as if NO has experienced wrenching deaths followed on by a devastating divorce– But hasn’t enough time passed since Katrina for people to heal their properties or move on?
June 3, 2010, 12:58 pmReaderY says:
I think that the trial court’s opinion that the Columbia doesn’t constitute a sufficient public use doesn’t correctly reflect current law, particularly in light of Kelo. Indeed, even pre-Kelo, an educational institution such as a university was a well-established public use. Governments in the 19th century routinely condemned and gave land to private companies to build railroads (and before that, canals). The fact that government didn’t build the railroad itself didn’t make the use non-public. So I don’t see why the fact that Columbia is a non-profit corporation rather than a government entity detracts from the fact that it is a school, and hence an established public use.
That said, in this situation New York as a matter of state law limited condemnations to “blighted” properties., I believe the trial court’s refutation of the claim that these properties were “blighted”, and in particular its debunking of the blight study Columbia conducted, was spot-on. The area was zoned for one- or two-story buildings. The study artificially defined less than 60% “utilization” as equivalent to blight, and then artificially defined “utilization” so that a one-story buildiing was 50% utilization and a parking lot or green space 0%. As the court noted, one-story buildings, parking lots, and green space were entirely appropriate to effective use of the property, and defining them as “blighted” meant the definition of “blight” used in the study had no connection whatsoever with “blight” in its ordinary plain meaning, which connotes deteriorated, abandoned, unsafe, or slum properties. One can’t define words like “blight” to mean whatever one finds it convenient for them to mean.
June 3, 2010, 11:27 pmIs the Debate Over Eminent Domain “Empty and Incoherent”? | theConstitutional.org says:
[...] a recent post on Kaur v. Urban Development Corporation, the Columbia eminent domain case currently before New York’s state supreme court, NYU lawprof [...]
June 5, 2010, 12:09 pm