Greenburgh, New York
Public Hearing called by State
Senator James Alesi,
Chair of the Economic Development and Small Business Committee
Westchester hearing in series of statewide hearings
Testimony in response to the recent ruling (Kelo
v. The City of New London) by the United States Supreme
Court stating that private property may be taken by eminent
domain when a locality desires to make the property available
for private commercial development.
My name is Daniel Goldstein. I live in Brooklyn, New York.
I'd like to first speak about the facts on the ground in one
alarming case of the abuse of eminent domain, as an example
of why we desperately need to reform New York's eminent domain
law, especially in light of the Supreme Court's Kelo decision.
My home on Pacific Street in Prospect Heights happens to sit
at center court of a proposed basketball arena. The basketball
arena is about 8 percent of a larger 10 million square foot
development proposal which includes 17 skyscrapers of mostly
luxury, market rate housing. The proposed site has, in recent
years, become one of the most desirable locations in Brooklyn
to purchase property. The developer is Bruce Ratner, CEO of
Forest City Ratner. Mr. Ratner has benefited greatly from
New York State's condemnation powers at Times Square where
he has partnered with The New York Times to build their new
I am also the spokesman for Develop Don't Destroy Brooklyn,
which leads a grassroots coalition of community organizations
opposed to Bruce Ratner's development proposal, and the use
of eminent domain for that proposal. Our organization has
over 5,000 members. Last December we filed an amicus brief
to the Supreme Court on behalf of the petitioner, Susette
Kelo et al.
The project proposes the use of eminent domain for about 53
buildings. It would displace around 800 people and 35 businesses.
Wielding the threat of eminent domain Mr. Ratner has bought
out many residents and some businesses, but many still remain
and will challenge condemnation when the time comes. Even
though it is the largest development proposal for Brooklyn
in at least 30 years, the project completely bypasses the
normal New York City Uniform Land Use Review Process, meaning
our City Council, Department of City Planning and community
boards have no say at all in the project. It also overrides
all local zoning laws. The lead agency and condemning agency
for the project is Empire State Development Corporation (ESDC).
The proposal was unveiled in December 2003 amidst great fanfare
with the support of several prominent political figures. But
it was only made an official State supported project one month
ago. This means that for nearly two years an entire neighborhood
has lived under the threat of eminent domain without the state
or city even having the decency to outline a timeline or explain
the law to homeowners, business owners and tenants in the
Ratner footprint; people and places such as Vince Bruns the
fish monger who lives in an irreplaceable converted factory
loft he's worked for decades to own, or Hector Gonzalez whose
family has lived on my block for 60 years, or Freddy's
pre-prohibition era bar (and community center), or Johnny
"Seatcovers" a senior citizen who has lived on his
quiet block for 40 years, or the newly renovated roofer's
union headquarters around the corner from me and on and on.
There is also the compelling and ironic case of Chinese immigrant
Simon Liu who owns a beautiful and wildly
successful fine painting support factory, which supplies
top artists and arts institutions around the country. Mr.
Liu employs 25 legal Chinese immigrants in his immaculate
and air conditioned factory. Mr. Liu came to America to get
away from a Communist country where he was forcefully evicted
from his home by the State. Now, decades later, the kind of
despotic power he fled from is threatening his business in
our so-called free market. His is a thriving business with
skilled employees that adds taxes to the city that are a sure
thing being taken away for a gamble. There is a sad history
(even right near the Ratner site) of condemnation and demolition,
only to see the project fall through. A once productive neighborhood
then lies fallow for 20-30 years creating true blight. There
are lots of examples of that. It could easily happen at Ratner's
Mr. Liu and the others are being forced from their condos,
their coops, their rent-stabilized homes, their businesses
and their neighborhood for a private sports arena and a lucrative
luxury residential mega complex. Even Robert Moses, known
for his extensive use of the power of eminent domain, didn't
condemn private property to benefit privately owned businesses.
The Fifth Amendment to the Constitution of the United
States of America reads:
"�No person�shall be�deprived of life, liberty, or property,
without due process of law; nor shall private property be
taken for public use, without just compensation."
Some would argue that the abuse of eminent domain is not necessarily
an abuse of the Constitution. Many Americans, from the left
to the right, would posit that it is an abuse of the Constitution.
What IS certain is this: the abuse of eminent domain is an
abuse of power that renders the Constitutional takings clause
meaningless and truly does threaten every un-connected property
owner (and their tenants) throughout New York. Too often this
abuse of power is formulated by the unholy alliance between
government and private developers, who are major political
players or donors in a specific locality or statewide.
Sadly, the taking of private property to give to a private
developer for a private project, justified by something called
"economic development" is all too common across
the country and particularly in New York. "Economic development,"
more often than not means increased tax revenue for a locality.
But here is the slippery slope: What locality across this
country ever stops seeking to increase its tax revenue? It
As we know, the abuse of eminent domain has run amok across
the country to the point of being an epidemic. The abuse of
eminent domain is like pornography; you know it when you see
it. The abuse of eminent domain is an issue not just of property
rights, but civil rights. And the abuse of eminent domain
destroys lives and communities. This is made abundantly clear
in Dr. Mindy Fullilove's book Root Shock: How Tearing Up City
Neighborhoods Hurts America, and What We Can Do About It.
It is a must read for anyone considering the health and psychological
effects of eminent domain on individuals, families and communities.
In the case of the Ratner project this kind of abuse of eminent
domain has reached a corrupt extreme, where the favoritism
is blatant, the cronyism is clear and the developer is an
old law school buddy of Governor Pataki, one of the project's
chief political supporters. Mr. Ratner also has a cozy relationship
with Mayor Bloomberg.
There is absolutely no local oversight, planning or decision-making
on this project. It is a completely developer driven planning
and approval process with the unaccountable, opaque ESDC bending
over backwards to give the developer whatever the developer
wants, including condemnation.
Favoritism and the absence of a legitimate planning process
is precisely what Justice Kennedy had in mind in his Kelo
concurrence where he wrote: "transfers intended to confer
benefits on particular, favored private entities, and with
only incidental or pretextual public benefits, are forbidden
by the Public Use Clause." Taking these facts and statements
into account, one could easily come to the same conclusion
as Columbia Law School professor and eminent domain expert
Thomas Merrill, who, after Kelo commented in the New York
Sun that, "The court responded more favorably to New
London than they would have if it had been the Ratner plan
they were considering."
The situation I've described in Brooklyn is, unfortunately,
not unique. It is this kind of favoritism, fixing and contorted
bastardization of public use to the nebulous "public
benefit" that makes meaningful eminent domain reform
in New York State necessary. I do not believe that the Brodsky/Flanagan
bill goes far enough, though it is a good start. Stricter
public use requirements are necessary. We need to rein in
the eminent domain and bring it back to traditional public
use. This would limit the use of eminent domain to truly public
works like parks, roads, airports, hospitals, and schools.
Such reform would outlaw condemnation for the benefit of private
developers, avoiding the cronyism and favoritism, which pits
the wealthy and powerful versus the powerless. Eminent domain
could not be used for private for-profit developments no matter
what the benefit might be to a locality. RFPs and competitive
bidding would be mandated for public projects requiring eminent
The meaning of blight would be much more clearly defined instead
of the current eye-of-the-beholder standard. The onus must
be on a legislative body and the condemning agency to prove
blight in a court and the courts must not defer to the condemning
agency as they do now. In my opinion, "blight" is used to
justify eminent domain and the purpose, these days is not
really to remove "blight," but to increase tax revenue. I
think an exploration must be made into changing the law where
"blight" cannot be used this way.
Yes, they will argue that our neighborhood in Brooklyn is
"blighted." But of course it is not. It's a mixed-use
neighborhood with million dollar homes, where development
is booming and where diversity is treasured. Blight is like
eminent domain abuse; you know it when you see it. And in
most cases where blight is claimed to justify eminent domain,
it's a bogus claim.
With necessary and inevitable reforms in New York's eminent
domain law, those with a vested interest in keeping the law
lenient for developers will raise the argument that economic
development and "progress" cannot occur without
the so called "tool" of eminent domain and that
localities will suffer without the power to condemn nearly
at will. But such an argument will be proven to be a self-serving
It is said that eminent domain, even when used for traditional
public uses, should only be used as a last resort. But Senator
Chuck Schumer's Group of 35, formed to create a long-term
"economic development" strategy in New York City,
clearly states that eminent domain should be used as a first
resort. More often than not eminent domain condemnation is
used as a first resort threat to cow and terrorize individuals
and whole neighborhoods into selling their homes and then
as a cudgel to force whole neighborhoods out of their homes.
It used to be called "urban renewal". Now it is
called "economic development." It is why our legislators
in Albany must reform our laws. And must do so with urgency.
Thank you very much for your time and attention.