Bloomberg Speaks Out for Eminent Domain

I look forward to my suspened sky box apt above center court.

Posted by: deg at May 3, 2006 9:51 AM

Under Kelo, eminent domain for "Atlantic Yards" is unconstitutional. don't matter if it effects one or dozens. unconstitutional is unconstitutional.

and for anyone who thinks the threat of eminent domain is not real, it is the only thing that has enabled Ratner to dismantle a perfectly fine set of blocks in Prospect Heights. If you like the idea of a private entity using the threat of a government power, without that government's approval of that power, then good luck to y'all.

Posted by: deg at May 3, 2006 4:03 PM

answer to the two below:

Cracked, I don't have a law degree. but i did read the Kelo decision. did you? if not, read it. if so, re-read it.

and David, here is the explanation:
the majority makes it VERY clear that when you have a favored developer (developer driven project) and no legislative planning process (developer driven project) what you have, then, is a violation of the Constitution, the Fifth Amendment.

Bruce Ratner and his Atlantic Yards are the poster child of that combination.

Cracked, you are exactly right, local governments need to determine what public needs justify the use of the takings power. No local government has or will make such a decision for "Atlantic Yards."

---------

Deg- care to explain how you read Kelo as ruling ED @ AY unconstitutional?

Posted by: David at May 3, 2006 04:08 PM

Deg - I think you need to get your law degree renewed. Kleo said that ED for AY is fine. It is unconstitional to use ED to bestow a purely private benefit, but the fact that Ratner stands to make the most money of anyone here does not meant that their are not other "public" benefits. Economic activity and low income housing help AY pass muster for Kelo purposes. In fact Kelo defers to the judgement (good or bad) of local governments to determine what public needs justify the use of the takings power.

Sorry for the multiple postings.

Posted by: Cracked Facade at May 3, 2006 04:11 PM

Posted by: deg at May 3, 2006 6:32 PM

no, eminent domain is not bad. but when it is perverted, abused and combined with cronyism and blight it IS bad.

David, I've read the majority and the concurring majority by Kennedy, and thats what it says. sorry.

Posted by: deg at May 4, 2006 2:14 AM

okay david you are right and I am wrong. as is Eminent Domain expert Columbia Law school professor Thomas Merrill, who is a SUPPORTER of the expansive use of eminent domain, who said that the people fighting Ratner's ue of eminent domain would have won that case (see below). yes the controlling is the majority and implicit in the majority is what is explicit in Kennedy's concurring, which I explained above. Keep on not agreeing, thats fine. thankfully you are not a judge.

yes:

In last week’s 5-to-4 decision in Kelo v. the City of New London, the U.S. Supreme Court Justices for the majority tamely deferred to a municipality’s determination that the destruction of homes in a working class neighborhood in order to build a commercial development constitutes a valid “public purpose.” To civil and property rights advocates, the decision marks a further erosion of the protections afforded by the Constitution and goes a great way to rendering the Fifth Amendment a dead letter. While the Justices for the majority held that municipalities could best “discern[] local public needs,” Justice O’Connor, in her remarkable dissent, pointed out that it was naive to solely rely on local politicians and legislators who are often in thrall to big developers. Thus, there was something distressing in the tone of triumphalism that marked some commentators’ reactions to the decision. Charles Gargano, chairman of the Empire State Development Corporation, hailed the decision as “good news,” noting that “eminent domain can be used to great effect.”(1) Mr. Gargano derives much of his authority from his ability to wield eminent domain; thus, it is not unusual that he would praise his most trusted weapon. Likewise, the statement of the New York Times, who in a June 24, 2005 editorial called the decision “a welcome vindication of cities’ ability to act in the public interest,” is self-serving in the extreme, as the Times used eminent domain to drive out businesses for the construction of its new headquarters in Times Square. Locally, we have Newsday heralding the decision as giving the green light to the Times’ partner-in-eminent-domain-crime Bruce Ratner and his plans to build a high-rise and arena complex in Prospect Heights. According to Newsday, “Ratner needs help. He does not need new legal hurdles to jump.” (2)

But perhaps Ratner will still have his work cut out for him if he intends on using eminent domain. Indeed, upon a closer study of the Kelo decision, and in particular Justice Kennedy’s concurring opinion, we find the Justices of the Court describing a scenario where eminent domain is susceptible to challenge in court. First, it must be noted that the situation in New London is clearly distinguishable from Ratner’s plans for Prospect Heights. In that case: (1) the state declared in 1990 that the entire city of New London was “distressed;” (2) the city entertained six alternate proposals; and (3) the city had not chosen the developers for the project at the time the city council approved the plan. In contrast, Atlantic Yards has been a plan driven by a single developer, and the city and state has acted more as giving the rubber stamp. Further, Justice Kennedy wrote: “transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden” by the Constitution. Taking these facts and statements into account, one could easily come to the same conclusion as one eminent domain expert, who commented, “The court responded more favorably to New London than they would have if it had been the Ratner plan they were considering.”(3)

In Kelo, the Court acknowledged that individual states still retain the power to restrict eminent domain, and perhaps the decision will galvanize citizens to force their legislatures to follow the lead of states like Utah, whose governor on March 17, 2005 signed into law a bill effectively prohibiting eminent domain for economic development. In the meantime, the Kelo decision does provide room to maneuver for opponents of Ratner’s plans for Prospect Heights. Recent history has informed us that it is unwise to accept unquestioningly a determination that an economic benefit justifies the use of eminent domain. Last year, the Michigan supreme court reversed itself and ruled that the City of Detroit had acted unconstitutionally in 1982 when it destroyed 1,500 homes, 16 churches, 144 businesses, two schools and a hospital in order to build a General Motors assembly plant. As it happened, the project ended up employing less than half the people expected and was a fiscal disaster for the city. Here in Brooklyn, we can ill-afford to wait 25 years to undo the dismantling of our communities.

(1) Quoted in “Property Ruling Could Affect N.Y. Development,” by Julie Satow, New York Sun, June 24, 2005, p. 6.

(2) “Taking' for public good: Supreme Court's property decision is logical but could easily be abused,” Newsday, June 27, 2005.

(3) Professor Thomas Merrill, quoted in Satow, supra FN 1.

Posted by: deg at May 4, 2006 11:31 AM

ok david, what does Merrill mean then by "more favorably" a 4.5 4.5 court split?

i say unconstitutional, you say not. we'll see when it goes to court.

Posted by: deg at May 4, 2006 12:16 PM