Wall Street Journal reasons out the Atlantic Yards eminent domain case in this October 13 editorial:
Property Rights Foul
Showdown in Brooklyn over the New Jersey Nets.
The anti-Kelo wave is cresting in New York this week as plans for
a new basketball arena clash with the property rights of state voters in a
watershed state court case.
In Goldstein v. New York State Urban Development Corporation, residents
and business owners are challenging the state's use of eminent domain to condemn
private property in a Brooklyn neighborhood for the benefit of a private developer.
Spawned by developer Forest City Ratner, the "Atlantic Yards" project
would build a new venue for the New Jersey Nets, along with office towers
and apartment buildings.
According to the state and developer, this qualifies as a "public use"—the
designation required to justify the seizure of private property under the
law. Once limited to public projects like roads or bridges, "public use"
has become an evolving legal concept that considers assorted "public
benefits" provided even in a private development. Under that standard,
nearly any new building project would qualify if it could be judged more appealing
than current occupants of the property.
That's the same slippery legal slope that former Justice Sandra Day O'Connor
warned about in her dissent in the misbegotten 5-4 Kelo v. City of New London
decision in 2005. Kelo is the reason this case is now in state court. The
suit was first filed in federal court, but after Kelo the Second Circuit Court
of Appeals denied the federal eminent domain challenge. The issue then moved
to the state courts, where many eminent domain cases have had success—though
not yet in the Empire State.
Private beneficiaries have included such big retailers as Costco,
Ikea and Stop and Shop, as well as The New York Times and New York Stock Exchange.
In Buffalo, old homes were threatened with demolition to make way for new
homes. In Syracuse, small businesses saw their properties put on the block
to clear a path for new office buildings. Notice a pattern here? In eminent
domain cases, the political class typically uses its power to help the strongest
private interests against the weakest.
In the wake of Kelo, some 43 states have limited the ability of the
state and local government to make such "takings." Other states,
like New Jersey, have seen stricter standards for eminent domain actions implemented
through the courts. But New York is a draconian holdout. The Brooklyn case
offers the courts a chance to tell the political class and its developer friends
that they can't trample over private property rights.