"As Naked an Abuse of Government Power as Could be Imagined"

How the Sotomayor nomination revived the debate over eminent domain abuse

Property rights were probably the last thing on President Barack Obama's mind when he selected Judge Sonia Sotomayor to replace retiring Supreme Court Justice David Souter. But that hasn't stopped Sotomayor's nomination from reigniting the long-simmering national debate over the use and abuse of eminent domain.

The controversy centers on Sotomayor's vote in a 2006 eminent domain case, Didden v. Village of Port Chester. New York entrepreneur Bart Didden says Port Chester condemned his land after he refused to pay $800,000 (or grant a 50 percent stake in his business) to a developer hired by the village. One day after Didden refused to pay those bribes, Port Chester began eminent domain proceedings against him.

As University of Chicago law professor Richard Epstein put it, "The case involved about as naked an abuse of government power as could be imagined." But that didn't stop Judge Sotomayor and two of her colleagues on the 2nd Circuit Court of Appeals from upholding the district court decision that ruled in favor of the village.

Still, this ugly decision wasn't entirely without precedent. Didden came on the heels of the Supreme Court's notorious 2005 decision in Kelo v. City of New London, which endorsed the government's power to seize property from one private party and hand it over to another so long as the taking was part of a "comprehensive" redevelopment scheme. That decision sparked nationwide outrage on both sides of the political aisle, including the passage of laws protecting property rights from Kelo-style abuse in 43 states. (The Supreme Court declined to hear Didden's appeal.)

None of that is likely to derail Sotomayor's nomination, however, which the Senate is fully expected to approve next month. But this renewed national focus on eminent domain abuse might still benefit a group of long-suffering property owners in Brooklyn, New York, who have been waging a five-year battle against the combined forces of Mayor Michael Bloomberg, the Metropolitan Transit Authority (MTA), real estate developer Bruce Ratner, and the Empire State Development Corporation (ESDC), a controversial quasi-public entity empowered by the state to seize private property via eminent domain.

At issue is the so-called Atlantic Yards project, a 22-acre redevelopment boondoggle centered on a new sports arena for the New Jersey Nets, a professional basketball team that just happens to be owned by Atlantic Yards developer Bruce Ratner. Property owner Daniel Goldstein and others brought suit, claiming the ESDC's use of eminent domain violates their property rights and oversteps even Kelo's generous interpretation of the Constitution's Public Use Clause. In particular, the plaintiffs argue that the alleged "civic benefits" of the project—including a fancy arena designed by celebrity architect Frank Gehry—were just pretexts used to justify handing both private and public land over to a politically-connected developer without considering any competing proposals. Last year the Supreme Court declined to hear arguments in their case, Goldstein v. Pataki, which is now working its way through state court.

This week the saga went from bad to worse, as the MTA, which controls the central portion of the land needed for the project, released a disastrous new plan. Consider this: In 2006 the MTA agreed to sell Ratner its 8-acre Vanderbilt rail yard—which had been appraised at over $200 million—for a lump-sum payment of just $100 million. Now the MTA says Ratner can pay just $20 million upfront, with the rest due over the next 22 years.

As the New York Post (which supports the Atlantic Yards project) declared in an editorial attacking the new deal, "After pleading poverty, jacking up [subway] fares and squeezing $2 billion from Albany, the MTA is now flush with cash. Or so one might think—if the agency OKs a plan to let a developer pay for air rights over the Atlantic Avenue rail yard on a 22-year layaway plan."

It's also worth noting that Ratner recently fired Frank Gehry, whose status as a global architectural celebrity had been one of the major "civic benefit" talking points in favor of the redevelopment. This prompted New York Times architectural critic Nicolai Ouroussoff to denounce Ratner's actions as "a shameful betrayal of the public trust, one that should enrage all those who care about this city." (The New York Times, by the way, currently operates out of a Times Square skyscraper built in partnership with Bruce Ratner that sits atop land seized via eminent domain.)

So what happens next? The state will no doubt approve this sweetheart deal just as it approved the previous one. But Ratner still needs to sell more than $500 million in arena bonds and break ground before year's end in order to qualify for tax-exempt status. Here's hoping Goldstein's lawsuit, a lousy economy, and renewed public outrage over eminent domain abuse make the Atlantic Yards the perfect size to fail.

Damon W. Root is a Reason associate editor.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    Any and all deals favoring billionaire sports team owners and their multi-millionaire employees just pisses me off.

    Additionally, the Nets suck. Always have and always will. Civic boosting New Yorkers should be barricading the bridges to prevent the Nets from soiling the city's athletic reputation.

  • Matt||

    I'm sure if the Islanders and the Nets got together they could scratch together enough money to build a legit arena. Not that I have a problem with the Islanders wasting away in the Nassau Mausoleum, but that would make a whole lot more sense.

  • Peter||

    Additionally, the Nets suck. Always have and always will.

    Give them until after their pick tonight to make that type of claim. They already have 2 good young players and are about to add a third piece of the puzzle. If they can deal Vince for anything but Vince then I'd pencil them in as a playoff team.

  • ||

    It ought to come up. Really, how many 5 member decisions has Souter been a part of that could possibly flip?

    The entire super-important Apprendi, Ring, Blakely, Booker, Gant line, sure, with another one out today. But Kelo is a rare case that (hypothetically) could flip if the Senate made it a litmus test.

  • ||

    That decision sparked nationwide outrage on both sides of the political aisle, including the passage of laws protecting property rights from Kelo-style abuse in 43 states.



    Sadly, in many cases these are just toothless laws claiming to protect property rights that don't seem to have any real effect. But at least it did spark outrage.

  • Rich||

    Anybody know of any property that was seized under eminent domain and subsequently taken *again* for a different purpose? I'm mostly curious about how "blight", um, evolves.

  • ||

    speaking of the supremes, how come Reason hasn't mentioned how Clarence Thomas disgraced himself today?

    I'm glad that eight out of nine of them were smart enough to realize that voting against a little girl who was molested wasn't a good political move, but WTF is Thomas' problem?

    -jcr

  • ||

    What pisses me off especially, is that if they would just dezone the area, or at least rezone it mixed use, and let people convert their own homes into commercial businesses, then you wouldn't need to bring in a developer to bulldoze the place. Either that or let the residents sell the property to someone who did want to convert it, on an open market.

    Even leftists ought to be in favor of that, because it would tend to favor the (generally poor) property owners who would see their property values rise as multiple commercial interests fought over the property.

    The way it is now, you have a developer making a bid to the city government, in a limited bidding process that favors established interests.

    If you opened it up to mixed use and allowed people to renovate homes it would benefit local residents and small businesses more.

  • ||

    Even leftists ought to be in favor of that, because it would tend to favor the (generally poor) property owners who would see their property values rise as multiple commercial interests fought over the property.

    Any time a leftist has to choose between helping poor people and increasing government power, he'll take the power every time.

    Pinkos have never cared about the poor; they're just the pretext for attacking anyone the pinko is jealous of.

    -jcr

  • ||

    "Any time a leftist has to choose between helping poor people and increasing government power, he'll take the power every time."

    Yes , politicians (particularly of the left) love to harp on the greed of say big oil, or non-union shops such as Walmart. But they never seem to get called out on there own greed, the lust for power over every aspect of our existance. Amazing how their method of governing never seems to actualy help the poor who they endlessly blather on about 'saving' from the evil bastard ____ (fill in the blank with conservatives , republicans , capatilists,extreme right wingers etc...). I know who the Daley regime in Chicago has helped, and it ain't the poor in the ghetto, but the connected cronies who feed at the public trough of taxation like the pigs they are.

  • ||

    I'm glad that eight out of nine of them were smart enough to realize that voting against a little girl who was molested wasn't a good political move, but WTF is Thomas' problem?



    Been discussed elsewhere, but essentially two things:

    1) Justice Thomas doesn't really believe that minor schoolchildren have many-- if any-- rights. See for example his opinion in the Bong Hits 4 Jesus case, Morse v. Frederick.

    2) Thomas likes to be all or nothing on rights. He apparently felt that if no one was challenging the right to search in general, it made no sense to allow searching elsewhere but not in one hiding spot. Criticized here by Volokh.

  • ||

    seriously, how can a reasonable person die for this country?

  • abercrombie milano||

    My only point is that if you take the Bible straight, as I'm sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won't get the full deal by just doing regular skill english reading for those books. In other words, there's more to the books of the Bible than most will ever grasp. I'm not concerned that Mr. Crumb will go to hell or anything crazy like that! It's just that he, like many types of religionists, seems to take it literally, take it straight...the Bible's books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on...the Bible's books were written by people with very different mindsets

  • Scarpe Nike Italia||

    is good

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