The
final collapse of redevelopment plans in New London leads to new scrutiny
of eminent domain for Atlantic Yards
The Kelo vs. New London case is experiencing
some serious blowback, now that the entire rationale for eminent domain there
has unraveled.
While the commentary does not directly address Atlantic Yards--where the justification
for eminent domain is the removal of blight, not the pursuit of economic development--the
experience in New London may nudge judges (like, say, the New York Court of
Appeals in the AY
eminent domain case) and legislatures toward greater scrutiny and skepticism
of eminent domain.
The court decision
Remember, the Supreme Court, in its controversial 5-4
2005 decision, upheld the city of New London's plan for eminent domain because,
as the majority
opinion concluded:
The City has carefully formulated an economic
development plan that it believes will provide appreciable benefits
to the community, including–but by no means limited to–new jobs
and increased tax revenue.
Moreover, Justice Anthony Kennedy, in his nonbinding
concurrence (seized on by plaintiffs in the unsuccessful Atlantic Yards
federal eminent domain case), observed:
This taking occurred in the context of a comprehensive
development plan meant to address a serious city-wide depression,
and the projected economic benefits of the project cannot be characterized
as de minimus.
(Emphases added)
The problem: Pfizer will close its global research and development headquarters
in New London, ending any lingering hopes that anything would happen with
the long-dormant plan.
...
[Supreme Court Justice John Paul] Stevens, however, wrote:
Alternatively, petitioners maintain that for takings of this kind we should
require a “reasonable certainty” that the expected public benefits
will actually accrue. Such a rule, however, would represent an even greater
departure from our precedent.... A constitutional rule that required postponement
of the judicial approval of every condemnation until the likelihood of success
of the plan had been assured would unquestionably impose a significant impediment
to the successful consummation of many such plans.
In
the Times, law professor Matthew Festa responds:
The legal rationale of Kelo
remains intact, but perhaps courts will be less easily persuaded by the comprehensiveness
of a proposed redevelopment plan when hearing challenges to eminent domain.
The implications for AY
A couple
of commentators on the Times web site also point to Atlantic Yards as
an abuse of eminent domain.
However, the state Court of Appeals could bypass the Kelo
debate by relying on the state's loose definition of blight. Then again, should
the court uphold the use of eminent domain, the Atlantic Yards case may stand
as a turning point in courts' use of blight.
But the court also could take a more careful look at the "comprehensiveness
of a proposed redevelopment plan." The record before the court assumes a ten-year
buildout of the project and pie-in-the-sky tax revenues.
Meanwhile, back in the real world, developer Bruce Ratner tells
Crain's, “Can you tell me when we are going to need a new office
tower?”
The state's economic projections for Atlantic Yards have already been proven
bogus. The question is whether the court will notice.
