Legal Commentary

Last Atlantic Yards Property Owner Agrees to Sell His Land Under Threat of Condemnation

By Ilya Somin

The last property owner in the condemned Atlantic Yards area of Brooklyn, New York has agreed to sell his land in order to avoid the condemnation of his property by the city government [HT: Josh Blackman]:

The last man standing in front of the Atlantic Yards bulldozer has stepped aside.

Daniel Goldstein ? founder of the anti-Atlantic Yards group Develop Don?t Destroy Brooklyn and plaintiff in numerous unsuccessful suits against the $4.9 billion project ? has reached an agreement with the project?s developer, Forest City Ratner, to move out of his condo on Pacific Street in Prospect Heights.

Mr. Goldstein confirmed that he would receive $3 million from Forest City. He bought his condo in 2003 for $590,000, but the state seized title to it under eminent domain last month, leaving Mr. Goldstein facing eviction. Mr. Goldstein said he would move by May 7.

He had told The Brooklyn Paper in an article published Wednesday morning that his lawyer would fight the condemnation or ?get fair market value and just compensation? for the apartment, as eminent domain law requires when the state seizes property. He had said the state had previously made a lowball offer of $510,000 to him.

Goldstein may have received a higher than market value price for his land in exchange for agreeing not to speak out against the development project anymore:

According to executives who have been briefed on the negotiations, Mr. Goldstein also agreed to a highly modified form of the gag agreement that Forest City had initially imposed on those it bought out, under which he would step down as spokesman for Develop Don?t Destroy Brooklyn.

Mr. Goldstein said that he retains his right to free speech but is no longer allowed to ?actively oppose the project.?

?There?s no end to the criticism and opposition to the project,? he said.

The release from Forest City was short on specifics and did not even speak Mr. Goldstein?s name.

?We are not going to discuss the details of the agreement,? Joe DePlasco, a spokesman for the developer, said in the statement.

Goldstein?s land and a great deal of other property in the area was condemned in order to transfer it to politically influential developer Bruce Ratner, under an extremely dubious rationale of alleviating ?blight.? I criticized the recent New York state supreme court decision upholding the condemnation in this post; back in 2008, I commented on the federal court decision upholding the condemnation against challenges under the Takings Clause of the federal Constitution.

In my view, that federal decision was probably dictated by the Supreme Court?s 2005 decision upholding economic development takings in Kelo v. City of New London. The state decision, by contrast, was deeply flawed because it was based on a ridiculously broad definition of ?blight? according to which virtually any area could be declared blighted and condemned; for reasons I explicate in my earlier post, such blight condemnations almost certainly violate the New York state constitution. Unfortunately, many other states also define ?blight? just as broadly. Ultra-expansive definitions of blight have undermined the effectiveness of the majority of the many eminent domain reform statutes enacted since Kelo.

On the plus side, Goldstein?s dogged resistance to these condemnations helped focus public attention on the problem of eminent domain abuse. The state court decision upholding it is an important setback for property rights. However, many other state courts have gone the other way over the last 15 years. During that time, numerous state supreme courts have invalidated Keo-like ?economic development? takings under their state constitutions ? including Illinois, Michigan, Montana, Ohio, Oklahoma, and South Carolina (see this article for cites to these cases). Only the Atlantic Yards case and the Connecticut Supreme Court?s narrow 4?3 decision in Kelo itself have gone the other way.

UPDATE: Please don?t bother pointing out that the New York state supreme court is officially called the Court of Appeals. I know this, and was using the term ?supreme court? as a generic term for the highest court of a jurisdiction. That way, I can avoid confusing readers who are not familiar with New York?s extremely confusing terminology.

Full post as published by The Volokh Conspiracy on April 22, 2010 (boomark / email).