Real Estate & Property Law

New York Still Has "Unfrozen Caveman Judges" Who Are "Frightened And Confused" By Eminent Domain Blight

By Robert Thomas (inversecondemnation.com)

More on today's opinion in the "Columbia U. blight" case, Kaur v. New York State Urban Development Corp., No. 125.

As we noted in our critique of the Atlantic Yards case (Goldstein), New York judges apparently are too "frightened and confused" by allegations that property is not truly "substandard or unsanitary," so must defer to the agency's finding:

The term "substandard or insanitary area" is defined as "a slum, blighted,  deteriorated or deteriorating area, or an area which has a blighting influence on  the surrounding area" (Uncons Laws § 6253 [12]). Here, the two reports prepared by ESDC consultants -- consisting of a voluminous compilation of documents and photographs of property conditions -- arrive at the conclusion that the area of the Project site is blighted. Just as in Matter of Goldstein, "all that is at issue is a reasonable difference of opinion as to whether the area in question is in fact substandard and insanitary," which is "not a sufficient predicate . . . to supplant [ESDC's] determination" (13 NY3d at 528).

Thus, given our precedent, the de novo review of the record undertaken by the plurality of the Appellate Division was improper.

Slip op. at 18. In other words, "blight" is whatever the agency says it is. Just drum up a "study" or two, and you're insulated from judicial review.

On top of that, the court included benefit to a private educational institution as a "civic purpose" that is also insulated from judicial review, and used the Atlantic Yards project as the examplar:

Moreover, consonant with the policy articulated in the UDC Act, ESDC has a history of participation in civic projects involving private entities. The most recent example of a civic project is the Atlantic Yards project, which authorized a private entity to construct and operate an arena for the Netsprofessional basketball franchise (see Matter of Develop Don't Destroy (Brooklyn) v Urban Dev. Corp., 59 AD3d 312 [1st Dept 2009], lv denied 13 NY3d 713 [2009]). The petitioners in that case argued that the project did not qualify as a "civic project" because the arena would be used by a professional basketball team and operated by a private profit-making entity. In rejecting that argument, the Appellate Division explained, "that a sports arena, even one privately operated for profit, may serve a public purpose" (id. at 325). Looking to the plain language of the UDC Act (see Uncons Laws § 6260 [d]), the court observed that "the proposed arena will serve a public purpose by providing a needed recreational venue in the area of the project" (id.).

The proposed Project here is at least as compelling in its civic dimension as the private development in Matter of Develop Don't Destroy (Brooklyn). Unlike the Nets basketball franchise, Columbia University, though private, operates as a non-profit educational corporation. Thus, the concern that a private enterprise will be profiting through eminent domain is not present.

Slip op. at 24-25. At least New Yorkers love their schools as much as their sports.

Full post as published by inversecondemnation on June 24, 2010 (boomark / email).