Real Estate & Property Law

NY Appeals Judge: "[T]here is no longer any judicial oversight of eminent domain proceedings."

By Robert Thomas (inversecondemnation.com)

We knew that, but in case you didn't take our word for it, here's a judge from the New York Supreme Court's Appellate Division to tell it like it is. In Uptown Holdings, LLCC v. City of New York, No. 2882 (Oct. 12, 2010), the Appellate Division held that the city's Department of Housing Preservation and Development validly condemned property, upholding the taking against a due process and a public use challenge:

Relying on Kelo v New London (545 US 469 [2005]), petitioners contend that the public benefits are illusory and speculative because there is no carefully considered, integrated development plan to which a developer is contractually bound. However, Kelo does not say that land may be condemned only if there is such a plan. Moreover, the Court of Appeals? decision in Matter of Aspen Cr. Estates, Ltd. v Town of Brookhaven (12 NY3d 735 [2009], cert denied ___ US __, 130 S Ct 96 [2009]) suggests that such a plan is not required.

Slip op. at 14. [We detailed the Aspen Creek Estates case here.] The court also distinguished the facts in 49 Wb, LLC v. Village of Haverstraw, 44 A.D.3d 226 (2007), a case in which the Appellate Division invalidated a taking because the condemnor's "sole purpose [was] assisting private entities by means of condemnation."

Where the quotation that provides the title of this post comes from is the concurring opinion of Judge James Catterson who agreed with the court's holding, but apparently only because as an intermediate court of appeals judge, he felt he was bound by the decisions of New York's highest court, the Court of Appeals:

In my view, the record amply demonstrates that the neighborhood in question is not blighted, that whatever blight exists is due to the actions of the City and/or is located far outside the project area, and that the justification of underutilization is nothing but a canard to aid in the transfer of private property to a developer. Unfortunately for the rights of the citizens affected by the proposed condemnation, the recent rulings of the Court of Appeals in Matter of Goldstein v. New York State Urban Dev. Corp., 13 N.Y.3d 511, 893 N.Y.S.2d 472, 921 N.E.2d 164 (2009) and Matter of Kaur v. New York State Urban Dev. Corp., 15 N.Y.3d 235, --- N.E.2d ---- (2010), have made plain that there is no longer any judicial oversight of eminent domain proceedings. Thus, I am compelled to concur with the majority.

Slip op. at 17 (Catterson, J., concurring).

Judge Catterson, as you may recall, authored the majority opinion for the Appellate Division in Kaur v. New York State Urban Dev. Corp., 861 N.Y.S.2d 51 (N.Y. App. Div. 2008), which struck down a taking because "the record overwhelmingly establsihes that the true beneficiary of the scheme to redevelop Manhattanville is not the community that is supposedly blighted, but rather Columbia University, a private elite education institution."

Ultimately, the New York Court of Appeals reversed that conclusion, holding that anything more than cursory judicial review of the factual record leading to an exercise of the eminent domain power was improper under New York law. The property owners, as noted here, have sought review by the U.S. Supreme Court.

Full post as published by inversecondemnation on October 13, 2010 (boomark / email).