When he cast the fifth and deciding vote in the Supreme Court's notorious 2005 decision in Kelo v. City of New London, Justice Anthony Kennedy laid down a few stipulations. First and foremost, Kennedy declared, while the local officials in New London did possess the controversial authority to seize private property and hand it over to another private owner for the purpose of "economic development," this sweeping eminent domain power was not a blank check. "Transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits," he wrote, "are forbidden by the Public Use Clause."
As for identifying those nefarious "favored private entities," Kennedy explained that officials in New London "reviewed a variety of development plans and chose a private developer from a group of applicants rather than picking out a particular transferee beforehand." In other words, under the binding terms of Kennedy's tie-breaking vote, the primary private beneficiary of an eminent domain taking must be "unknown at the time the city formulated its plans."
Last week, attorney and former New York Civil Liberties Union director Norman Seigel decided to take Kennedy up on his word, filing a petition with the Supreme Court asking it to hear the case of Tuck-It-Away, Inc. v. New York State Urban Development Corporation. At issue is last June's disastrous ruling by New York's Court of Appeals—the state's highest court—allowing New York's powerful Empire State Development Corporation (ESDC) to seize private property in the West Harlem neighborhood of Manhattanville and hand it over to Columbia University, an elite private institution, which wants to build a new research campus in the neighborhood. Notably, the Court of Appeals' 34-page decision made no mention of Kelo.
It was an unacceptable omission. Thanks to multiple Freedom of Information Law requests filed by Siegel over the past few years, there is now overwhelming evidence that Columbia and the ESDC actively colluded in order to game the state's eminent domain system, making Columbia the exact sort of "favored private entity" that Kennedy warned about in Kelo.
For instance, in 2006 the ESDC hired—without any competitive bidding—the planning firm Allee King Rosen & Fleming, Inc. (AKRF) to conduct an "impartial" blight study of Manhattanville in order to determine if an eminent domain taking was justifiable under state law. Except there was nothing impartial about it. Not only was AKRF also on Columbia's payroll at that time, at least six different AKRF employees were simultaneously working on both the blight study and the Manhattanville project—a blatant conflict of interest. Furthermore, as internal documents have since revealed, AKRF promised to "focus on characteristics that demonstrate blight conditions" and to emphasize "highlighting any physical blight that may be present." So the purpose of the report wasn't to objectively determine if blight conditions were present, it was to "focus" on a pre-ordained result that fit the agenda of AKRF's two employers.
To make an ugly situation even worse, AKRF failed to note that Columbia owned 76 percent of the property in the neighborhood (the figure is now around 96 percent) and was therefore directly responsible for the vast majority of blight conditions that were found. Of the five buildings cited as being hazardous to the public, for example, four turned out to be under Columbia's control. Similarly, all seven buildings cited for hazardous garbage or debris were Columbia-owned and all 12 examples of vermin occurred in Columbia buildings. Yet how did the state respond to Columbia's destructive and illegal behavior? By trying to seize the last holdout properties and hand them over to the university. So much for due process of law.
More damning still is a May 12, 2006, email recently obtained by Siegel after nearly three years of stonewalled Freedom of Information Law requests. In it, ESDC Senior Counsel Joseph Petillo told his colleagues, "I'm uncomfortable with us shining a spotlight on the process used to manufacture support for condemnation" (emphasis added). Take a moment to let those words sink in. Now consider that the state kept this incriminating document hidden from Siegel and his clients (not to mention hidden from numerous state judges) during every previous phase of the case. And according to property owner Nick Sprayregen, whose Tuck-It-Away storage business is at the center of the conflict, "the state is still refusing to give us thousands of other documents." It makes you wonder what else Columbia and the ESDC are trying to hide.
Which brings us back to Justice Kennedy's tie-breaking and therefore controlling vote in Kelo. In that case, the relevant public officials determined the purpose and scope of the project before settling on the transferee who would reap the profits. That way the prime beneficiary of government power wasn't also helping to direct that power toward its own ends. In the Columbia case, however, the state agency worked hand-in-glove with its preselected private beneficiary from the very start, even colluding with Columbia in order to "manufacture support for condemnation." Nor did the ESDC ever consider any alternative plans for the neighborhood. That's exactly the sort of favoritism and corruption forbidden under Kelo. As the Supreme Court begins work on its new term, let's hope the justices give the petition in Tuck-It-Away, Inc. the careful scrutiny it deserves.
Damon W. Root is an associate editor at Reason magazine.