Tag Archives | Kaur

Let there be Blight – My New Article on Blight Condemnations in New York

My new article, “Let There Be Blight: Blight Condemnations in New York after Goldstein and Kaur” is now available on SSRN. It critiques the New York Court of Appeals’ recent controversial blight takings decisions in the Atlantic Yards and Columbia University eminent domain cases. It was part of a Fordham Urban Law Journal symposium on Eminent Domain in New York. Here is the abstract:

The New York Court of Appeals’ two recent blight condemnation decisions are the most widely publicized and controversial property rights rulings since the Supreme Court decided Kelo v. City of New London. In Kaur v. New York State Urban Development Corp., and Goldstein v. New York State Urban Development Corp., the Court of Appeals set new lows in allowing extremely dubious “blight” condemnations. This Article argues that the New York Court of Appeals erred badly by allowing highly abusive blight condemnations and defining pretextual takings so narrowly as to essentially read the concept out of existence.

Part I briefly describes the background of the two cases. Goldstein arose as a result of an effort by influential developer Bruce Ratner to acquire land in Brooklyn for his Atlantic Yards development project, which includes a stadium for the New Jersey Nets basketball franchise and mostly market rate and high-income housing. Kaur resulted from Columbia University’s attempts to expand into the Manhattanville neighborhood of West Harlem. When some of the landowners refused to sell, Ratner and the University successfully lobbied the government to declare the land they sought to be blighted and use eminent domain to transfer it to them.

Part II addresses the issue of blight condemnation. Goldstein and Kaur both applied an extraordinarily broad definition of “blight” that included any area where there is “economic underdevelopment” or “stagnation.” In addition, the court opened the door

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Supreme Court Refuses to Hear Columbia University Takings Case

Sadly, the Supreme Court has refused to hear the Columbia University blight takings case. This New York state supreme court decision was a particularly egregious instance of the abuse of “blight” condemnations to take property that was not blighted in any meaningful sense and transfer it to a powerful private interest group. I wrote an amicus brief on behalf of the Cato Institute, Institute for Justice, and the Becket Fund for Religious Liberty urging the Court to take the case. As we pointed out in the brief, the case represented a valuable opportunity for the Court to clear up the massive confusion in state and federal courts over the issue of what qualifies as an unconstitutional “pretextual taking” – a condemnation where the official rationale is a mere pretext for a scheme to benefit a private party. Even in Kelo v. City of New London, the Supreme Court emphasized that such pretextual takings are still forbidden by Public Use Clause of the Fifth Amendment. But it gave very little guidance on the question of what counts as “pretextual.”

I share Megan McArdle’s frustration about the Court’s refusal to take the case. But I do quarrel somewhat with her lament that “this is an issue that only fires up libertarians.” Among the amicus briefs urging the Court to take the case was this one, by liberal Democratic New York state Senator Bill Perkins, a prominent critic of eminent domain abuse in the state. The Becket Fund, one of my own clients in this case, is certainly not a libertarian organization. More broadly, among those strongly opposing the Kelo decision were such liberal groups and activists as the NAACP, the Southern Christian Leadership Conference, Ralph Nader, Howard Dean, and Representative Maxine Waters, as well as various [...]

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Our Amicus Brief Urging the Supreme Court to hear the Columbia University “Blight” Takings Case

I recently wrote an amicus brief urging the Supreme Court to hear the Columbia University blight takings case, on behalf of the Institute for Justice (the public interest law firm that litigated Kelo v. City of New London, among many other important property rights cases), The Becket Fund for Religious Liberty, and the Cato Institute. The brief is available here. As I explained in this post, the New York Court of Appeals’ decision in the Columbia case is an extreme example of a very common problem: the use of dubious “blight” condemnations to transfer property from the politically weak to the locally powerful interest groups – in this case a major university.

The case also represents an important opportunity for the Court to address a major unresolved issue in eminent domain law. In Kelo, the majority ruled that “economic development” counts as a public use that justifies the use of eminent domain to transfer property to private parties. But the Court also noted that “pretextual” takings – condemnations where the official rationale is “a mere pretext…. when [the] actual purpose was to bestow a private benefit” – are unconstitutional. Unfortunately, the Court was extremely unclear about what qualifies as a pretextual taking. As we explain in Part I of the brief, lower federal courts and state supreme courts have been all over the map in trying to develop rules for what counts as a pretext. The New York Court of Appeals decision in the Columbia case is at an extreme end of a continuum, defining pretext so narrowly that it is almost impossible to imagine a successful pretext case. Other courts – including the supreme courts of Pennsylvania, Hawaii, Rhode Island, and the District of Columbia, and the federal Ninth Circuit – have defined pretext more [...]

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Universities and Eminent Domain

In Kaur v. New York Urban Development Corporation, its recent decision upholding the condemnation of property for transfer to Columbia University, the New York Court of Appeals claimed that the use of eminent domain to transfer land to a private university is more defensible than its use to transfer land to commercial corporations, as in the Atlantic Yards case:

Unlike the [New Jersey] Nets basketball franchise [one of the key beneficiaries of the Atlantic Yards takings], Columbia University, though private, operates as a non-profit educational corporation. Thus, the concern that a private enterprise will be profiting through eminent domain is not present. Rather, the purpose of the Project is unquestionably to promote education and academic research while providing public benefits to the local community. Indeed, the advancement of higher education is the quintessential example of a “civic purpose”…. It is fundamental that education and the expansion of knowledge are pivotal government interests.

I think this line of argument is seriously flawed. I tried to explain why in one of my earliest posts on the Columbia University takings back in 2006:

…Columbia President Lee Bollinger and [others] defend the use of eminent domain to transfer property to universities on the ground that universities create “public benefits.” While universities do provide important benefits to society, this does not justify allowing them to condemn property.

Most of the benefits provided by universities are “private goods” that are fully captured by their students and faculty. For example, going to college greatly increases a student’s earning prospects, but that student will himself capture the benefits. Basic economics shows that there is no need for government subsidies for these kinds of private goods.

Universities do also provide some “public goods” – benefits to society that the university, its faculty, and its students cannot fully

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New York High Court Upholds Columbia University Takings

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 [...]

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New York Intermediate Appellate Court Invalidates Taking of “Blighted” Property for Transfer to Columbia University, but Contradicts Recent State Supreme Court Decision in the Process

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 [...]

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