Real Estate & Property Law

Another Amicus Brief In Columbia Eminent Domain Case: Redevelopment Takings "[D]isproportionately impact ... racial and ethnic minorities."

By Robert Thomas (inversecondemnation.com)

New York State Senator Bill Perkins has filed an amicus brief in Tuck-It-Away, Inc. v. New York State Urban Dev. Corp., No. 10-402 (cert. petition filed Sep. 21, 2010), the case in which upper Manhattan property owners have asked 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 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. The record in that case contains fairly convincing evidence that the proffered public use for the takings were not the actual reason, and the Appellate Division concluded that the taking was not valid.

As we noted in several posts criticizing the Court of Appeals' decision (see here and here) and in a post lauding the Appellate Division's decision, "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."

Senator Perkins' brief focuses on the fact that "blight removal" and "economic development" takings "disproportionately impact already marginalized groups, including tenants, the elderly, persons of low-income, and racial and ethnic minorities." Br. at 7.

Condemnees who belong to "discrete and insular minorities," as well as other disadvantaged groups, are not only marginalized in the political processes surrounding redevelopment projects, they are also confronted with especially severe impacts from displacement. See Kelo, 545 U.S. at 521 (Thomas, J., dissenting) (citing United States v. Carolene Products Co., 304 U.S. 144, 152, n.4 (1938)). Although this Court has recognized that blight removal and economic development takings generally serve public purposes, the prevalence of eminent domain abuse in the redevelopment setting and the fact that these takings also cause disproportionate harm to minority and low-income communities provides a compelling reason for this Court to grant review. The lower courts, as illustrated by this case, need guidance regarding pretext challenges, and the toothless judicial review required by the decision below will encourage redevelopment agencies to appropriate property for private purposes under the guise of economic development. The consequences, unfortunately, will be predictable: the benefits will accrue to the wealthy and politically-connected, and the burdens will fall on those least able to bear them.

Id. The brief continues with examples from Berman v. Parker and the urban renewal efforts of the 1960s and 1970s, and concludes that "[r]edeveloping Manhattanville as an exclusive Columbia campus would follow these patterns." Br. at 14.

The brief, which is available here, is worth reading.

Full post as published by inversecondemnation on October 27, 2010 (boomark / email).