September 29, 2005

Article at The New York Sun

The Eminent Domain Fight-Back


New Yorkers worried about the Supreme Court's property-rights-eviscerating ruling in the Kelo v. New London can take comfort in knowing that some of the Empire State's legislators are working to ensure that it's harder for a New Yorker's home to be seized to become someone else's castle. It's not a moment too soon, since abuses were happening here even before Kelo.

Businesses such as the New York Times and Forest City Ratner have been booting out homeowners and small businesses ever since the Supreme Court ruled in the 1954 Berman v. Parker case that the government could seize property from a slum in Washington, D.C., for private redevelopment because it was considered "blighted." Governor Rockefeller was happy to define "blight" broadly, seizing private property for public use, according to a senior fellow at the Manhattan Institute, Julia Vitullo-Martin. The abuses continue to this day; Castle Coalition, a group "fighting eminent domain abuse," lists nine current projects involving private-to-private transfers across New York. And Kelo opens to the door to transfer for vague "economic development" purposes.

Kelo at least left the door open to legislative restrictions on eminent domain. To that end, a state assemblyman, Richard Brodsky, has proposed a bill requiring a local government to hold a vote on any taking. Mr. Brodsky's legislative director, James Malatras, told The New York Sun that "it would affect the Ratner deal" - the Atlantic Yards project in Brooklyn - because the MTA would have to get local approval for the deal.

Meanwhile, a state senator, Carl Marcellino, has introduced a bill to limit the definition of a "public project" to those that "provide economic development in a blighted area of the state." He plans to use hearings in January to "tighten the definition of 'blighted'" in his bill. A separate bill by Senator John DeFrancisco would restrict the power of eminent domain to public projects, and where an "industrial development agency approves the use of eminent domain" the local legislature would need to approve it first. Mr. DeFrancisco has also proposed a constitutional amendment restricting the seizure of private property to public uses only.

These bills will have to wait until the legislature returns in January. In the meantime, the chairman of the Senate Committee on Commerce, Economic Development, and Small Business, James Alesi, is holding hearings across the state to learn what the public thinks of eminent domain. The hearings start today in Rochester and end on October 27 in Syracuse.

In the City Council, Letitia James has proposed a bill prohibiting the city from using the "power of eminent domain to take ownership of private property solely for economic development purposes." It also bars city funds from being used as part of any state or local project that uses eminent domain to seize private property. This bill is currently before the Economic Development Committee, chaired by Councilman Sanders. A spokesman for the speaker of the city council, Gifford Miller, said the "speaker is looking at it and has not made a decision on it" yet.

Despite the outpouring of legislation, Ms. Vitullo-Martin cautions that a "diverse array of powerful groups," from big developers to social service groups, oppose limiting eminent domain. But the Constitution seems clear that "public use" refers to public projects such as highways and schools for which there is no other option, not to a brand new skyscraper for a private company. Legislators owe it to their constituents to curb these abuses before they go any further.