Real Estate & Property Law

Cert Petition In Columbia "Blight" Case: Are There Any Limits To Eminent Domain In New York?

By Robert Thomas (inversecondemnation.com)

In a case that could write the next chapter in the Kelo saga, the property owner recently filed this cert petition asking the U.S. Supreme Court to review the decision of the New York Court of Appeals in the Columbia "blight" case, Kaur v. New York State Urban Development Corp., No. 125 (June 24, 2010).

This is the case in which the Court of Appeals held that de novo judicial review of the factual record leading to an exercise of the eminent domain power was improper, and whether property can be taken because it allegedly is "substandard or insanitary" is a question for taking agencies, not courts. As we noted in several posts criticizing the decision (see here and here) and in a post lauding the Appellate Division's decision (which struck down the taking as pretextual), "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."

The cert petition poses two Questions Presented:

This Petition should be granted to address two urgent questions arising from the Court of Appeals of New York's dismissal of Petitioners' challenge to the legitimacy of the governmental takings at issue in this case:

1. Whether it was error for the Court of Appeals of New York to disregard the principles enunciated in Kelo v. City of New London, 545 U.S. 469 (2005) in sanctioning the use of eminent domain for the benefit of a private developer, when the circumstances presented by the instant case exemplify the very bad faith, pretext, and favoritism that this Court warned could result if Kelo's safeguards were ignored?

2. Whether the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States imposes any minimum procedural standards, in accordance with the requirement of fundamental fairness, to preserve a property owner's meaningful opportunity to be heard within the context of an eminent domain taking?

The petition suggests that the Court should review the case "to clarify the circumstances under which the principles of Kelo should inform judicial review of eminent domain takings." Petition at 17.

More, after we've had a chance to review the petition in more detail. More background from the Columbia Spectator: Property holdouts look to Supreme Court.

Full post as published by inversecondemnation on September 23, 2010 (boomark / email).