Private Developers Have No Right to My Home

It's time for New York's high court to protect homeowners.

Over six years ago Bruce Ratner—a top political contributor and law school friend of then Gov. George Pataki—asked Pataki to use eminent domain to seize 22 acres of prime Brooklyn real estate and hand them over for his Atlantic Yards development plan. By way of comparison, the Ground Zero site is 16 acres. The taxpayer-subsidized project would be 16 skyscrapers and a professional basketball arena for the New Jersey Nets team Ratner bought as leverage for the land grab (and just conditionally sold to Russia's richest oligarch, Mikhail Prokhorov).

These 22 acres happened to include my home and my neighbors' homes and businesses—a slice of an ethnically, racially, and economically diverse, mixed-use neighborhood undergoing steady, healthy growth.

On October 14th our landmark case challenging this abuse of eminent domain to enrich and enormously benefit a powerful and politically connected developer will be argued at the Court of Appeals—New York's high court. The oral argument and eventual ruling will be historic.

"Public use,” required for eminent domain, has come to mean something other than construction of roads, parks, hospitals, schools, railways, etc. It has transmogrified into some amorphous, highly speculative "public benefit" or "public purpose," which could be anything a developer with government "partners" declares it to be.

The Supreme Court's infamous 2005 Kelo ruling alerted many Americans to this perversion of the Fifth Amendment of the U.S. Constitution.

Kelo also awakened many state legislatures and courts. Forty-three states have made post-Kelo eminent domain reforms in order to return eminent domain closer to its original intent, and give meaningful security to homeowners that they're more than temporary placeholders for wealthy, well-connected developers.

New York's legislature is one of the seven that has not acted. Though they did put on an act. Hearings were held in both houses. But proposals for legislation never made it out of committee and after the immediate national post-Kelo uproar subsided, the legislature moved on to its regular, and notable, dysfunction.

So everyday New Yorkers have been left unprotected and undefended by our elected officials. With such a non-responsive legislature, the only place to turn has been the courts, the great equalizer. Thankfully, we have this showdown with the state's most powerful and abusive condemning authority—the Empire State Development Corporation.

New York's Constitution says that property can be taken for a "public use." Not a "public benefit" or "public purpose." No New York State Constitutional Convention or legislature has ever seen fit to change this language or amend it. "Public use" means "public use." But again and again New York has approved eminent domain condemnation for projects, such as Atlantic Yards, that benefit private entities at the public's expense—so not only are they not for "public use," they are not even for the "public benefit." It's time for this to stop.

When eminent domain is used in service of building a school, a railway, or a hospital, we know what we'll get. But when "economic development" is the justification, we have no idea what we'll get except for false hopes, false dreams, and happy talk, along with a land grab windfall for the developer and theft of homes.

In the case of Atlantic Yards the so-called "benefits" are illusory at best. No attempt has been made by the condemning authority or the lower court to weigh the public versus private benefits; meaning there has been no cost-benefit analysis of the project and no analysis of the developer's benefit. But it doesn't take a degree to see who gets the very short end of the stick.

Thirty-one months after Atlantic Yards was unveiled we learned, for the first time, that the "public benefit" of the project was the removal of "blight." But the proposed takings area was not "blighted" in 2003 no matter how permissive a definition of "blight" one may apply. That said, what now passes for "blight" bears no relationship to the slum problem encountered by the City in the 1930s, when eminent domain was utilized for “slum clearance.”

In the 1930s the people of this state and the Court of Appeals understood that slums posed an "extraordinary threat to public health and safety," and "are the breeding place of disease" where the "public evils, social and economic, of such conditions, are unquestioned and unquestionable."

Prospect Heights, where the project is proposed, is the antithesis of that description, as is nearly any other neighborhood in New York state. But when the state deems a neighborhood "blighted", and then takes it, just because there are some weeds, or sidewalk cracks, or something called underutilization, then all of us in New York are vulnerable to eminent domain abuse.

Calling the Atlantic Yards site "blighted" was an obvious post-hoc justification to enable eminent domain in a state where "blight" has been erroneously interpreted to mean whatever the state determines it to be. And if all the state has to argue to justify seizing properties is some speculative public "benefit" or "purpose"—based on some contrived "blight" declaration—then what exactly isn't a "public use"?

My co-plaintiffs and I are not asking for much. We're simply asking for the state's constitutional Public Use Clause to be applied, which, despite the cries of the vested interests, will not stymie development in New York City. If it is not applied, then today our homes can be seized in an abusive manner, but tomorrow it will be your home just because some politically connected, backroom-dealing rich guy can get his cronies to determine that his enrichment is somehow for the public's use.

Daniel Goldstein is the lead plaintiff on Goldstein et al. v. NYS Urban Development Corp (d/b/a Empire State Development Corp.) and a co-founder of Develop Don't Destroy Brooklyn, Inc.

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  • John Tagliaferro||

    It is time to revoke the government's power of eminent domain. If they need property, they can negotiate a sale with the owner.

  • ||

    OK, yes, it's time. Where do I report for the revolution?

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  • Attorney||

    ... when the state deems a neighborhood "blighted", and then takes it, just because there are some weeds, or sidewalk cracks, or something called underutilization, then all of us in New York are vulnerable to eminent domain abuse.

    Excellent piece.

  • ||

    New York's legislature is one of the seven that has not acted.

    -----------------------------------

    But again and again New York has approved eminent domain condemnation for projects, such as Atlantic Yards, that benefit private entities at the public's expense

    Landmark case? Although I'm with you on eminent domain abuse, I can't see anything new that you're bringing to the table here. There are no new laws that've been made and there seems to be strong precedent. You seem set to lose I'm sad to say.

    Is your case less cut and dry than you make it out to be?

  • Robert Moses||

    At least when I destroyed a neighborhood, I did it to build a highway.

  • J sub D||

    Good luck. I mean that with all my heart, Mr Goldstein. Unfortunarely the state of New York has not exactly been a leader in the fight for property rights so I must sadly predict you will lose.

    Fuck Ratner and the diseased horse he rode in on!

  • J||

    Great article. I have read a few on this particular case, and it saddens me that they can remove good, honest people from their homes to build up a developer and his greed.

  • Paul||

    It's for a "public purpose" I'm assuming. So my guess is, we're done. Chuck your filthy muck into the street, Mr. Goldstein. And here's a bill for the back rent you owe Mr. Ratner.

  • ||

    I hope this leads to a debate on, assuming that the government no longer has a right to your property, whether of not the government has a right to your money.

    Because the government has no right to anything of mine.

  • Paul||

    It's the government's world; you're just livin' in it.

  • ||

    No. It's my world, it's your world, it's everyone's world. But it is not the few's world.

  • ||

    How are those tax returns working out for you?

  • Alan Vanneman||

    I totally agree with this, but for well over a century eminent domain has been used--to build railways, for example--as a tool to allow big capitalists to buy out little capitalists--farmers, for example--at a price the big capitalist wants to pay. The abuse of the public power of eminent domain for private gain is scarcely something new. I hope the NY court decides in Mr. Goldstein's favor.

  • Ravac||

    Did a capitalist touch you in your naughty place when you were young Alan?

  • robc||

    Im pretty sure one of those people isnt a capitalist.

  • Paul||

    I wonder why government keeps giving the big "capitalists" this tool?

  • Kroneborge||

    Now what's the point of having powerful politcal connections if not to steamroll the little guy?

  • Gene Berkman||

    George Pataki was elected Governor of New York three times by lavishly distributing taxpayers money to special interest groups, and rewarding his contributors. He was the archtype of a big government Republican.

    Using eminent domain to pay off a contributor is just another example of using government power for special interests.

  • ||

    I was just reading a James Pethokoukis news article about this suit. In the comments, there was one guy who was pissed off at Ratner, but only because he dropped Frank Gehry as architect for the arena.

    It really hard to give a shit about some people.

  • ||

    [insert "is" as needed]

    There is apparently a new suit which has been filed, covering the sweetheart deal made between Ratner and the MTA for the railyard.

  • ||

    Big government as middleman should raise enough to eliminate all taxes, if we gan keep the grubby fingers of politicians our of the pie.

  • ||

    Why not use eminent domain on Ratner and Pataki's properties? They would probably much better suited for development...

  • Paul||

    They are. Ratner considers all of New York "his" property. There are just some people squatting there and he's trying to get them thrown out.

  • ||

    Now, now. Let us not question the judgement of our social and economic betters. When you are boxing up your roach infested belongings so that your nest may be razed that your sacrifice is making life much better for someone else. That should bring you happiness.

  • The Libertarian Guy||

    What about the Chicago slumlords who lost out when the Olympics were kiboshed?

    Ahh, the sweet taste o' the tears...

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  • PR||

    and like all arenas and stadiums, in 25 years it will be a "toilet"

  • MikeB||

    Mr. Goldstein and his remaining property owners are to be saluted for their informed tenacity. Eminent domain is a sobering experience and you cannot fully appreciate the challenge of fighting a corporation with the power to take your property rights and/or property under the badge of government.

    Regardless of the Court's decision, New York and Pennsylvania citizens will see more eminent domain actions via the energy industry, and driven primarily by profitable interest in gas deposits in the Marcellus Shale.

    More gas wells mean more underground gas storage fields and more pipelines -- which means more eminent domain "taking" for the "public good."

    We speak from experience, have endured a transformative two-year fight for our rights against Texas-based Spectra Energy, backed by the Federal Energy Regulatory Commission.

    There is the court of law and the court of public opinion. Property owners must fight in both arenas. We are now sharing information and responding to property owners in Pennsylvania and other states. For information, contact us through our website: http://www.spectraenergywatch.com/blog/

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  • Canadian Colin||

    This story seems to be a very effective argument against for-profit private interests manipulating government to benefit private interests. The government is only the people who run it, and in NY it seems that the government is being used to carry-out the bidding of private, for-profit interests. Isn't that an argument against the intrusion of private capital interests into government rather than a condemnation of 'government' per se?

  • Canadian Colin||

    And,...Why do ya'll keep labeling each other as capitalists and socialists.

    Your nation blatantly (strategically) blends both socialism and capitalism. You are all socialists! And, you are all capitalists. You're just not 100% either.

    Give-up the polarizing rhetoric and learn the benefits of each side of this equation.

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