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Tuesday, November 24, 2009

Eminent Domain Abuse: Atlantic Yards Given Go-Ahead By New York's Highest Court, Private Property To Be Condemned for New Sports Arena

In a disastrous ruling that threatens the rights of private property owners in New York State, the New York Court of Appeals this morning upheld the condemnation of private residential property in downtown Brooklyn as "blighted" so the proposed Atlantic Yards megadevelopment can be built for the benefit of the NBA's New Jersey Nets and their majority-Russian ownership group.   Atlantic Yards will feature a new sports arena for the Nets (or are they the Nyets?).   

The effect of the decision is to institutionalize a preference for certain private interests (the buyers) over other private interests (who will be compensated but are unwilling sellers).   Ostensibly there is a "public use" here.   Be very worried.   If you are not powerful enough or influential enough, will it be you next time who is forced into a shotgun-wedding type of deal where you are told what you will do (sell) and the price you will accept.

I reserve final judgment until I fully digest the New York Court of Appeals decision (PDF version). However, I fear this decision puts large segments of the private property owner universe at direct risk of the arbitrary declaration by bureaucrats that their property is either "blighted" (as they define it, of course) or not the most efficient use. In the future, how does a property owner feel secure that someone -- especially someone with an axe to grind or score to settle and the influence to match -- won't come after their property? This is approaching rule by dictat, not rule by law. We are one step closer to the destruction of the private property right which occurs when "banana republic" despots nationalize and expropriate property from their enemies and give it to their cronies.

On the other hand, before you criticize the courts, please understand that the courts' role is to interpret the law.   The law that is made by the legislature and signed by the Governor.   Hint:  Blame the State Legislature if you don't like the outcome, not the Court of Appeals.   This decision may be a disaster, but the origin is not the Court of Appeals (or any lower courts).   Solution:  The Legislature must carefully proscribe the intented uses and limits of eminent domain so private property rights are properly protected and observed.
There are clear constitutional implications to this decision. Let us hope this case will be appealed to the U.S. Supreme Court (it definitely should) and give the new Court an opportunity to revisit its recent Kelo decision (a 5-4 decision upholding eminent domain seizure).    However, I seem to remember the Supreme Court suggesting that legislative action was the proper remedy.   Again, attention should be fixed upon the State Legislature. 





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