Legal Commentary

New York High Court Oral Argument in Columbia Eminent Domain Case

By Ilya Somin

The New York Court of Appeals (which, despite the misleading name, is New York?s state supreme court), recently held oral arguments in Kaur v. New York Urban Development Corporation, the case in which New York City is trying to condemn a large amount of property in the Manhattanville neighborhood in order to transfer it to Columbia University. The Columbia Spectator has an interesting summary of the oral argument here.

Columbia and the government?s Urban Development Corporation have are claiming that the property can be taken because it is ?blighted.? However, a lower court decision recently invalidated the takings because that the studies that supposedly prove the existence of ?blight? are flawed and may have been deliberately cooked up to justify a bogus taking. 

I have been very critical of both the Columbia takings specifically (see here for the most recent post and links to earlier ones), and the more general use of broad definitions of ?blight? to justify condemnation of virtually any property that might be coveted by politically influential businesses and other interest groups.

At the same time, for reasons I discussed here, I am not optimistic that the Court of Appeals will uphold the lower court?s decision. In the recent Atlantic Yards case, the court endorsed the constitutionality of condemnations under an extremely broad definition of ?blight? that would allow the taking of any property that might be ?underdeveloped.? I think the Atlantic Yards decision was badly misguided. Among other things, it grossly misinterpreted the blight provision New York?s state constitution, which only allows condemnation of ?substandard an insanitary? areas. Nonetheless, it is difficult to distinguish the Atlantic Yards case from Kaur. However, the Spectator?s description of the oral argument suggests that the judges were tough on both sides, which may indicate that they have some skepticism about the government?s position.

The issue of broad definitions of ?blight? is not limited to New York. It undermines protection for property rights in many other states as well. Since the Supreme Court?s controversial decision in Kelo v. City of New London, some 43 states have enacted laws banning or limiting the condemnation of private property for transfer to other private individuals in order to promote ?economic development.? Unfortunately, as I explained at length in this article, most of these states? laws define blight so broadly that virtually any area can still be designated as blighted and condemned. In other words, any property that government might want to take under an ?economic development? rationale can instead be taken under a blight rationale.

UPDATE: NYU lawprof Rick Hills comments on the case and the more general questions it raises here. I disagree with many of Rick?s points and will try to address them in a later post, time permitting.

Full post as published by The Volokh Conspiracy on June 02, 2010 (boomark / email).