In today’s decision in Kaur v. New York State Urban Development Corp., The New York Court of Appeals (the state’s highest court) has upheld the condemnation of property in the Manhattanville 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 officials could declare virtually any area “blighted” and thereby make it eligible for condemnation and transfer to favored private interest groups.
Nonetheless, there are several extremely troubling aspects of this case. As in the Atlantic Yards decision, the court upheld an extremely dubious “blight” condemnation by applying a rule holding that any area could be declared blighted so long as it might be “underdeveloped.” Indeed, even the presence of underdevelopment (a phenomenon that occurs in almost every neighborhood at one time or another) need not actually be proven. Instead, the government need only show that there is “room for reasonable difference of opinion as to whether an area is blighted.” As the lower court opinion in Kaur pointed out, this kind of lax standard would allow the city to declare “[v]irtually every neighborhood in the five boroughs” blighted. And, as I pointed out in this post, the court’s position makes a mockery of the New York state constitution, which allows blight condemnations only in “substandard and insanitary areas.”
Even worse, the Court of Appeals in Kaur brushed aside or completely ignored extensive evidence showing that the blight study justifying the condemnations had been rigged in Columbia’s favor and that Columbia itself was likely responsible for most of the “blighted” conditions. The key “blight” study was conducted by AKRF, a consulting firm hired by Columbia. As the lower court decision pointed out:
It is critical to recognize that [the state Economic Development Corporation's] 2002 West Harlem Master Plan which was created prior to the scheme to balkanize Manhattanville for Columbia’s benefit found no blight, nor did it describe any blighted condition or area in Manhattanville. Instead… the Plan noted that West Harlem had great potential for development that could be jump-started with rezoning. It was only after the Plan was published in August 2002 that the rezoning of the “upland” area was essentially given over to the unbridled discretion of Columbia. In little more than a year from publication of the Plan, EDC joined with Columbia in proposing the use of eminent domain to allow Columbia to develop Manhattanville for Columbia’s sole benefit.
This ultimately became the defining moment for the end game of blight. Having committed to allow Columbia to annex Manhattanville, the EDC and [Empire State Development Corporation] were compelled to engineer a public purpose for a quintessentially private development: eradication of blight.
From this point forward, Columbia proceeded to acquire by lease or purchase a vast amount of property in Manhattanville. It is apparent from the record that ESDC had no intention of determining if Manhattanville was blighted prior to, or apart from Columbia’s control of the area…. Throughout this time Columbia not only purchased or gained control over most of the properties in the area, but it also forced out tenant businesses, ultimately vacating, in 17 buildings, 50% or more of the tenants. The petitioners clearly demonstrate that Columbia also let water infiltration conditions in property it acquired go unaddressed, even when minor and economically rational repairs could arrest deterioration. Columbia left Building Code violations open, and let tenants use premises in violation of local codes and ordinances by parking cars on sidewalks and obstructing fire exits, and maintaining garbage and debris in certain buildings over a period of years….
ESDC delayed making any inquiry into the conditions in Manhattanville until long after Columbia gained control over the very properties that would form the basis for a subsequent blight study. This conduct continued when ESDC authorized AKRF to use a methodology biased in Columbia’s favor. Specifically, AKRF was to “highlight” such blight conditions as it found, and it was to prepare individual building reports “focusing on characteristics that demonstrate blight conditions.”
This search for distinct “blight conditions” led to the preposterous summary of building and sidewalk defects compiled by AKRF, which was then accepted as a valid methodology and amplified by Earth Tech. Even a cursory examination of the study reveals the idiocy of considering things like unpainted block walls or loose awning supports as evidence of a blighted neighborhood.
The Court of Appeals decision completely ignored the fact that Columbia may well have created much of the “blight” that justified the condemnation transferring property to the university. On the issue of the objectivity of the AKRF study, the Court of Appeals opinion claimed that the mere fact that AKRF was employed by Columbia does not disprove the validity of its conclusions, and also notes that those conclusions were validated by a later study conducted by another firm. It does not consider the evidence cited by the lower court showing that the methodologies of both studies were deliberately biased in Columbia’s favor.
It is perhaps worth noting that AKRF was also the firm that conducted an equally dubious blight study justifying the Atlantic Yards takings. In that case, the blight study and takings were heavily influenced by politically influential developer Bruce Ratner, the originator of the development project in question.
The Court of Appeals also makes much of claims that the Columbia project will produce important public benefits by creating jobs and other economic payoffs. However, there is little if any proof that the condemnation of these particular properties (which are only a small part of the total area where Columbia wants to build) is actually needed to produce those benefits. Moreover, as I point out in this article, private interest groups and local governments routinely inflate such estimates because once the property is condemned, they are not legally required to actually produce the economic gains that supposedly justified the condemnation in the first place. Based on past experience, it would not be at all surprising if Columbia ultimately fails to produce more than a small fraction of the benefits it now predicts.
The problem of over-broad definitions of blight is hardly limited to New York. It is present in numerous other states too, including many that have enacted post-Kelo eminent domain reform laws. Nonetheless, the Atlantic Yards and Kaur cases set a new low in this field. Not only has the New York Court of Appeals applied an extraordinarily broad definition of blight, it has also endorsed blight designations based on studies that are probably rigged in favor of private interests who benefit from condemning the areas in question. Moreover, it has opened the door to condemnations based on the presence of “blight” created by the very people who will get to own the property after it is taken.
UPDATE: Tim Sandefur and the Inverse Condemnation blog have further comments on the decision.
UPDATE #2: Matt Festa of the Land Use Prof blog comments here:
I expected the standard Kelo-style deference to legislative and executive officials to determine what things are in the public benefit (although I thought the Court rather passively accepted the argument that Columbia = education (nonprofit!) and education = good = constitutionally sufficient public benefit). But I was still a little surprised at the extent to which the Court seems to bend over backwards to disclaim any competence at all to evaluate the sufficiency of a “blight” determination by the government (which also gets to decide to use eminent domain). That’s the rational basis test taken to its logical extreme.
SuperSkeptic says:
But look on the bright side: There are positions higher than tenured professor, right?
June 24, 2010, 5:53 pmCornellian says:
Yet another court deferring to the elected branches. When will it ever end?
June 24, 2010, 5:56 pmJohnF says:
NY Court of Appeals judges used to be elected. Now they are appointed by the Governor and approved by the NY State Senate. Too bad.
June 24, 2010, 6:04 pmathEIst says:
We can only hope Columbia will be as successful in its endeavor as PFizer was in its.
June 24, 2010, 6:08 pmIsn’t Columbia the University with a self-appointing board of trustees who all happen to be (essentially) realtors?
Ilya Somin says:
Yet another court deferring to the elected branches. When will it ever end?
The fact that a branch of government is elected doesn’t give it the power to violate constitutional rights.
June 24, 2010, 6:12 pmathEIst says:
P.S. Columbia was years ago the second largest property owner in Manhattan(hence the attraction of “realtors”). It has now probably pulled ahead of the Catholic Church which is not so easily infiltrated.
June 24, 2010, 6:23 pmwm13 says:
Would that the courts were so deferential when it came to dealing with terrorists. But the hostility of the chattering classes usually finds its strongest focus when directed at small landlords.
June 24, 2010, 6:44 pmAJK says:
You tell me — which of these people are (essentially) realtors?
http://www.columbia.edu/cu/secretary/docs/trustees/background-information.html
June 24, 2010, 6:46 pmgladetariba says:
Just like in Venezuela
June 24, 2010, 7:31 pmSuperSkeptic says:
In theory. In reality, not so much.
June 24, 2010, 7:32 pmPersonFromPorlock says:
IS, maybe it’s time to quit picking apart the ‘reasoning’ of the judges in these cases and simply ask if there’s any evidence that they’re not personally corrupt. Not every bad decision is the result of bad judgement….
June 24, 2010, 7:59 pmBama 1L says:
It is traditional to have an argument over New York court terminology in these posts. Shame on Professor Somin for circumventing it by writing so clearly.
June 24, 2010, 8:11 pmJeff S. says:
I’m sure alumnus Barack Obama will be pleased for his alma mater.
June 24, 2010, 8:32 pmSuperSkeptic says:
Question: What percentage of the income of Columbia University comes from the government?
“At its current value of more than $7.1 billion (as of June 30, 2007), [Columbia's] endowment can generate upwards of $355 million in spendable income each year—a significant amount, but still a relatively small share of Columbia’s annual budget. In FY2008, less than 13 percent of the University’s $2.66 billion budget will be funded by investment income from the endowment, a proportion half or even one-third that funded by endowment income at wealthier peers such as Princeton, Harvard, and Yale.”
June 24, 2010, 9:37 pmhttp://giving.columbia.edu/faqs/endowment.html#endowment_more
AJK says:
If there’s a point you’re trying to make here, I have to say that I don’t see it…
Ilya, I’d be interested in hearing your thoughts on Judge Smith’s concurrence. Assuming that you were going to accept the Atlantic Yards case as settled, how would you have ruled here?
June 24, 2010, 9:56 pmDavid Welker says:
Ilya,
Congratulations! I am sure this decision will help your career. Now you have something to write about.
Oh, and it was also completely consistent with our Constitution and the public interest. Sounds like a win-win to me.
Today is a good day for everyone! =)
June 24, 2010, 10:14 pmReaderY says:
This is a case of statutory construction, not constitutional rights. A university is a public use under the pre-Kelo conception, and it makes no difference that it’s a private university: education is public use just as railroads, airports, and utilities are public use regardless of whether provided through governmental or private entities.
However, the New York legislature chose to enact a statute limiting takings to blighted property. The term “blight” deserves a fair, reasonable, honest, and common-sense meaning. Properties are not “blighted” simply because people choose to erect one-story rather than two-story buildings in areas zoned for one or two stories. A blight study which defines “blight” as “underutilization” in a way that makes all buildings shorter than the maximum number of allowed stories (not to mention parks) into “blight” is simply not using a fair, reasonable, honest, or common-sense meaning of the term.
June 25, 2010, 12:03 amipse says:
Glad someone finally has the balls to say it
June 25, 2010, 12:09 amAJK says:
Oh, come on. Are you really suggesting that the judges on the Court of Appeals were bribed?
June 25, 2010, 1:14 amA. Zarkov says:
“… applying a rule holding that any area could be declared blighted so long as it might be “underdeveloped.”
By that standard ANWR is “blighted.” Obviously the concept has been perverted beyond all recognition to serve special interests. In this case, Columbia University. More and more we see government making decisions on an ad hoc basis, ignoring time honored general principles. The federal government did this when it stiffed GM bondholders to favor the automobile union. I’m afraid we are in the end stage of liberalism where virtually everything becomes special in some sense. The émigrés from the old Soviet Union should recognize what’s happening because that landscape was littered with “special” committees, and “extraordinary” decrees.
June 25, 2010, 7:21 amXmas says:
I’m surprised the city supported Columbia’s grab of the land. Aren’t school properties taken off of the tax rolls in New York? They are “non-profit” organizations after all.
There are other college cities (e.g. New Haven) that suffer from the lack of tax revenues when colleges (e.g. Yale) gobble up properties. My hometown (Worcester, MA) has at least worked some PILOT money from the schools located there, but I wouldn’t expect those big schools to play along.
June 25, 2010, 8:01 amPersonFromPorlock says:
Remember those two Pennsylvania Juvenile Court judges who personally profited from sending teens to jail? Or this? Why should we bend over backwards to avoid presuming corruption when it’s an obvious explanation for otherwise curious decisions? I’m sure judges – and thus the lawyers who dance to their tunes – are all for giving judges the benefit of the doubt, but the rest of us have no reason to unthink the unthinkable, and reason enough to think it.
June 25, 2010, 8:37 amFedya says:
I wouldn’t go that far, but this is dysfunctional New York we’re talking about.
(As of yesterday evening, the budget hadn’t been passed yet, and that’s supposed to be passed by April 1. And don’t get me started about the shenaningans in the Senate last year.)
June 25, 2010, 8:41 amFloridan says:
PersonFromPorlock: IS, maybe it’s time to quit picking apart the ‘reasoning’ of the judges in these cases and simply ask if there’s any evidence that they’re not personally corrupt. Not every bad decision is the result of bad judgement….
Is there any evidence that this is meant to be taken seriously?
June 25, 2010, 9:23 amAJK says:
What’s curious about the decision? It’s exactly what every single person who thought about it — including those who did not presume corruption — expected to happen. You don’t have to like the way it came out, but if you’re surprised, you weren’t paying attention.
The really curious opinion, in my opinion, is the Appellate Division’s, which reached the result I’d like, but seems to flagrantly ignore binding precedent in order to do so.
So what’s your theory? I don’t really understand how “dysfunction” could explain the result here. The system seems to have functioned perfectly well — it just didn’t reach the result that some of us wanted.
June 25, 2010, 11:58 amPersonFromPorlock says:
See my further comment. The deference the Establishment (that includes lawyers) pays to those in government is simply a license to steal – and steal they have done, often enough.
There’s no binding state precedent on the state’s highest court: the judges were free to abandon an arguably wrong precedent and the fact that they didn’t is curious, or ought to be.
June 25, 2010, 12:51 pmSuperSkeptic says:
Not sure if I have a point either, just thinking and asking the question…
June 25, 2010, 1:08 pmAJK says:
I certainly would have found it more curious if they had decided to overturn an eight month old precedent. Are you really claiming that the most reasonable explanation for the judges to do so is bribery? Do you think all 7 were bribed (seems like overkill, doesn’t it?) Just the ones who signed onto the majority? Just 4?
June 25, 2010, 2:30 pmPersonFromPorlock says:
Judges have certainly been bought in the past and when they come to an obviously flawed decision, even one supported by a previous flawed decision, corruption – not necessarily cash bribery, but corruption of the ‘one hand washing the other’ sort – is at least a reasonable hypothesis. Has a New York State Senator on the Judiciary Committee (or whatever it’s called in New York), who draws financial support from the Columbia University community, recently become more favorable to funding, say, refurbished judges’ chambers? We don’t know and you won’t look.
June 25, 2010, 5:47 pmAutism Custody Battles says:
If you say anything, you will be slaughtered. Follow my page Blow the Whistle, Get Slandered
August 18, 2010, 7:41 pm