Real Estate & Property Law

New York Court Of Appeals: Agency Can Blight The Baby With The Bathwater With No Judicial Oversight

By Robert Thomas (inversecondemnation.com)

The New York Court of Appeals issued its opinion in the appeal regarding the Atlantic Yards redevelopment project, Goldstein v. New York State Urban Development Corp., No. 178 (Nov. 24, 2009). This case was a challenge to the taking under the New York Constitution.

While we have not yet fully digested the 66 pages of opinion, concurrence, and dissent, but the short story is that the court allowed the taking of non-blighted property to go forward, holding that a blight finding by an agency is not judicially reviewable:

It is only where there is no room for reasonable difference of opinion as to whether an area is blighted, that judges may substitute their views as to the adequacy with which the public purpose of blight removal has been made out for that of the legislatively designated agencies; where, as here, "those bodies have made their finding, not corruptly or irrationally or baselessly, there is nothing for the courts to do about it, unless every act and decision of other departments of government is subject to revision by the courts."

Slip op. at 16 (quoting Kaskel v. Impellitteri, 306 N.Y. 73, 78 (1953), cert. denied, 347 U.S. 934 (1954)). The court essentially washed its hands of blight questions:

It may be that the bar has now been set too low -- that what will now pass as "blight," as that expression has come to be understood and used by political appointees to public corporations relying upon studies paid for by developers, should not be permitted to constitute a predicate for the invasion of property rights and the razing of homes and businesses. But any such limitation upon the sovereign power of eminent domain as it has come to be defined in the urban renewal context is a matter for the Legislature, not the courts.

Slip op. at 17.

More about the decision from the New York Times here (with an accompanying blog entry here). See also this post about the decision from the Eminent Domain Law Blog.

More after we've had a chance to read the opinions in detail.

Full post as published by inversecondemnation on November 24, 2009 (boomark / email).