Many states have clamped down on eminent domain. Recent court cases signal that New York won't be following their lead.
Seizing another person’s land is a pretty strong-armed way of doing business. Property owners have often challenged eminent domain in courts, and lawmakers in many states have tried to limit its use. Recent decisions in New York show that the state won’t hesitate to apply the broadest interpretation of the law to make mega-developments happen.
On June 24, the New York Court of Appeals—the state’s highest court—ruled that the state could use eminent domain to acquire property for a Columbia University expansion in West Harlem. The decision overturned a rare December 3 rejection by a lower court. The landowners fighting to keep their property intend to appeal to the U.S. Supreme Court.
The decision comes seven months after another controversial eminent domain ruling: On November 24, the same Court of Appeals upheld the use of eminent domain for the $4.9 billion Atlantic Yards development in Brooklyn. The massive, mixed-use project is now under construction.
Stoking the Debate
These recent decisions have reignited a long-running debate over the uses of eminent domain. Should we be afraid of Beijing or Shanghai-style condemnations of property to promote urban redevelopment?
“It’s very challenging to assemble large parcels of land to promote projects in the public interest,” says Vishaan Chakrabarti, a former New York City planning official and director of Columbia’s real estate development program. “There needs to be a very high standard for what constitutes a public purpose, but it is a necessary part of urban redevelopment.”
Eminent domain is allowed under the Fifth Amendment, which enables the government to seize private land if it provides just compensation and the project serves a public use. Since the 1970s, courts have interpreted “public use” broadly. In 2005, in the landmark case Kelo vs. the City of New London, the U.S. Supreme Court affirmed that the government can acquire private property via eminent domain and turn it over to another private owner for redevelopment. Since that controversial ruling, 43 states have passed laws limiting the use of eminent domain. New York is not one of them.
“New York is the sub-basement of the law—it’s an open sewer,” says Gideon Kanner, a lawyer and blogger specializing in eminent domain cases (http://gideonstrumpet.info/). “It has never in modern history considered the question of public use on the merits of the case.”
A Long Saga
The Columbia University saga goes back years. The school, in 2002, began acquiring property in an area called Manhattanville for the $6.3 billion expansion, and in 2003 hired a team including Renzo Piano, SOM, and James Corner to masterplan a 17-acre site. In 2007, it contracted Davis Brody Bond Aedas as architect of record.
The 25-year plan maintains the existing street grid but calls for the demolition of all but four structures and construction of 16 new mixed-use buildings for classrooms, research labs, and housing. A complex of building services and parking would be located below ground. Most property owners in the neighborhood struck a deal with Columbia, but there were a few holdouts.
In December 2008, the Empire State Development Corporation (ESDC), the state’s development arm, voted unanimously to use eminent domain to acquire the property, arguing that the area is blighted and the Columbia plan would be a significant land-use improvement. In response, several Manhattanville property owners, one of them represented by attorney Norman Siegel, filed a petition against the ESDC. They also hired Mafruza Khan, a former planner at Pratt Center for Community Development, to help them perform their own land-use study.
The case, Kaur v. New York State Urban Development Corporation, went before a lower appellate court in December. The judge found that Empire State’s “blight study” was flawed and ruled in favor of the property owners. At the time, Siegel credited their strategy. “People challenging eminent domain need to create their own record. We did 13 Freedom of Information Act requests to put thousands of pieces of paper into the record. We also created our own no-blight study to challenge the government’s blight study. We went building by building, took photographs showing the conditions, and analyzed what they claimed was blight,” he said soon after his early court victory.
Siegel, speaking to RECORD in June, said he’s disappointed by the recent decision and plans to appeal to the nation’s highest court. “We believe it sets a terrible precedent for the abuse of eminent domain,” he said. “The history in New York is to show deference to the administrative agency, and that’s a huge thing that you have to overcome. Fortunately the judicial system allows us one more opportunity.”
Maxine Griffith, Columbia’s head of government and community affairs (and former head of Philadelphia’s city planning commission), defends the project’s civic purpose. “Even more telling than the finding of ‘blight,’” she says, “was the 20-year history between elected officials and the community.” Griffith notes that residents aspired to clean up the area long before Columbia was involved. “[The university] is intervening in a positive way in a neighborhood that has been recognized to be underdeveloped.”
Meanwhile, demolition and pre-construction work has begun on a site already owned by Columbia for the first building on the new campus, the Jerome L. Greene Science Center, a neuroscience research facility designed by Piano. Unless the Supreme Court intervenes, the first phase of the new campus is slated to be finished in 2015.