OCTOBER 20, 2005
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 headquarters.

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 proposed site.

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:
"ÉNo personÉshall beÉdeprived 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 never ends.

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 domain.

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 canard.

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.