In the past 11 months, New York's highest court—the Court of Appeals—has had two perfect opportunities to perform its basic constitutional duty and carefully review the highly controversial use of eminent domain by the state's powerful Empire State Development Corporation. It failed both times. First, in Goldstein v. New York State Urban Development Corporation, the high court rubber stamped New York's land grab on behalf of real estate tycoon Bruce Ratner and his Atlantic Yards basketball stadium project. In that opinion, the majority actually admitted that eminent domain abuse might be occurring, but then declared that it had no business second-guessing the state officials who had made the dubious blight determination:
It may be that the bar has now been set too low—that what will now pass as "blight," as that expression has come to be understood and used by political appointees to public corporations relying upon studies paid for by developers, should not be permitted to constitute a predicate for the invasion of property rights and the razing of homes and businesses. But any such limitation upon the sovereign power of eminent domain as it has come to be defined in the urban renewal context is a matter for the Legislature, not the courts.
So much for an independent tribunal of justice. Then, in the case of Kaur v. New York State Urban Development Corporation, the court followed this ridiculous precedent and rubber stamped the Empire State Development Corporation's corrupt partnership with Columbia University, once again refusing to perform any sort of judicial review on the bogus blight findings that will allow the state to seize private property and hand it over to the elite private university.
All of which brings us to yesterday's unanimous appellate court ruling in Matter of Uptown Holdings v. City of New York. As befits a lower court, the judges consider themselves bound by the precedents set by the state's highest court. What does that mean in practice? Here's the entirety of Judge James Catterson's depressing and all-too-accurate concurring opinion:
In my view, the record amply demonstrates that the neighborhood in question is not blighted, that whatever blight exists is due to the actions of the City and/or is located far outside the project area, and that the justification of under-utilization is nothing but a canard to aid in the transfer of private property to a developer. Unfortunately for the rights of the citizens affected by the proposed condemnation, the recent rulings of the Court of Appeals in Matter of Goldstein v. New York State Urban Dev. Corp. (2009) and Matter of Kaur v. New York State Urban Dev. Corp. (2010), have made plain that there is no longer any judicial oversight of eminent domain proceedings. Thus, I am compelled to concur with the majority.
As I noted in a column last month, the victimized property owners in the Columbia University case have now asked the U.S. Supreme Court to review New York's actions (the Court refused to hear the Atlantic Yards case in 2008). Judge Catterson's opinion is yet more evidence why the Supreme Court needs to start paying attention to New York's eminent domain abuse.