In the editorial "Eminent Domain in New York," (Dec. 13, 2009), the New York Times opines about the two recent eminent domain decisions from the New York state appellate courts:
A New York State appellate court has misguidedly put a roadblock in the way of Columbia University’s expansion plans, ruling that the state misused eminent domain to help Columbia assemble the land it needs. This decision conflicts with the relevant law and will make it much harder for the university to move ahead with a project that would benefit the surrounding neighborhood and the entire city.
The editorial is referring to Kaur v. New York State Urban Dev. Corp., 2009 NY Slip Op 08976 (Dec. 3, 2009), in which the New York Supreme Court, Appellate Division (First Department) struck down the attempted taking of land north of Columbia University in New York City because of the record reflected the condemnor's claim the properties are "blighted" was a pretext to mask overwhelming private benefit. The Kaur court undertook an extensive review of the facts and concluded "there is no independent credible proof of blight in Manhattanville."
The Times believes that Kaur conflicts with the decision the week earlier by the Appellate Division's next-higher court, the New York Court of Appeals in Goldstein v. New York State Urban Development Corp., No. 178 (Nov. 24, 2009):
The [Kaur] decision is completely out of step with eminent domain law, including a recent 6-to-1 decision from the New York State Court of Appeals, the state’s highest court. That court ruled that Brooklyn’s Atlantic Yards, a commercial development, can use eminent domain to secure land to build new housing and a basketball arena for the Nets. That was the right decision, and the case for Columbia is even stronger.
It should not be a huge surprise that the Times ends up cheerleading for the wrong team in both of these cases. As you may recall, the paper was the private beneficiary of a similar eminent domain action (as noted here), so at least it cannot be accused of being inconsistent. But let's give the editorial board the benefit of the doubt and assume that its opinion wasn't driven by crass self-interest, but by a genuine belief that the Kaur decision "conflicts with the relevant law."
It is still wrong.
The "relevant law," as correctly noted by the Kaur court, is the U.S. Supreme Court's decision in Kelo v. City of New London, 545 U.S. 469 (2005). While that decision has been rightly and roundly criticized (repeatedly by this blog), it is the controlling law and sets a "baseline" below which no state court's interpretation of its state's eminent domain law can fall. Id. at 489.
Although Kelo reaffirmed the "rational basis" standard of review for economic development takings that are part of a comprehensive plan (and where the private beneficiary is known only after the plan is adopted), Kelo should not be interpreted -- as the Times and Goldstein seem to view it -- as carte blanche for condemnors to toss out whatever justification they please, safe in the knowledge that a court will not question it. The Kelo majority opinion stated that pretextual statements of public purpose were subject to judicial review:
Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit.
Kelo, 545 U.S. at 477-78. When you add in Justice Kennedy's fifth vote and his concurring opinion, the blueprint to guide the lower courts' review of public use claims becomes more clear:
A court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits, just as a court applying rational-basis review under the Equal Protection Clause must strike down a government classification that is clearly intended to injure a particular class of private parties, with only incidental or pretextual public justifications.
Kelo, 545 U.S. at 491 (Kennedy, J., concurring). Justice Kennedy added:
A court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government’s actions were reasonable and intended to serve a public purpose.
Id. (Kennedy, J., concurring). This is exactly what the Kaur court did when it concluded the agency's claim of blight lacked any "evidence whatsoever."
When the Times castigates the Kaur opinion as "weakly reasoned," you have to wonder whether the editors read the same decision we did, since all Kaur did was look at the facts. Unlike Goldstein, the Kaur court did not ignore Kelo's baseline and refuse to even look at the facts in the record. Goldstein washed its hands of the inquiry, holding that courts must accept an agency's determination that a parcel is in fact blighted. How Goldstein's interpretation of the New York Constitution's public use clause is above Kelo's Fifth Amendment baseline was never explained by the court.
By contrast, the Kaur court did what Kelo said the Fifth Amendment requires: when "confronted with a plausible accusation of impermissible favoritism to [a] private [party,]" the court did what courts are supposed to do: it took a hard look at the facts in the record, and made its conclusion. It treated the property owners' allegations of pretext and private benefit seriously, noting that the inquiry was compelled by Kelo:
In this case, the record overwhelmingly establishes that the true beneficiary of the scheme to redevelop Manhattanville is not the community that is supposedly blighted, but rather Columbia University, a private elite education institution. These remarkably astonishing conflicts with Kelo on virtually every level cannot be ignored, and render the taking in this case unconstitutional.
At least two other courts -- the District of Columbia and Hawaii -- have viewed the Fifth Amendment and Kelo similarly, holding that the Public Use Clause reserves the question of whether a particular use or purpose is in fact the reason for a taking for judicial review. See Franco v. Nat'l Capital Revitalization Corp., 903 A.2d 160, 169 n.8 (D.C. 2007) ("appply[ing] the decision of the Kelo majority, written by Justice Stevens," a claim of pretext should be taken seriously and a court has the power of judicial review); County of Hawaii v. C&C Coupe Family Ltd. P'ship, 198 P.3d 615, 644 (Haw. 2008) ("However, both [Haw. Hous. Auth. v.] Ajimine[, 39 Haw. 543, 550 (Terr. 1952)] and Kelo make it apparent that, although the government's stated purpose is subject to prima facie acceptance, it need not be taken at face value where there is evidence that the stated purpose may be pretextual."). [Disclosure: we represent the property owners in the Coupe cases.].
These cases stand somewhat apart from other pre- and post-Kelo decisions which hold that the public use clause in a state constitution provides greater protection to property owners than does the Fifth Amendment. Cf., e.g., City of Norwood v. Horney, 853 N.E. 1115 (Ohio 2006) (economic development alone will not support a taking under the Ohio Constitution); County of Wayne v. Hathcock, 684 N.W.2d 765 (Mich. 2004) (same, under the Michigan Constitution's public use clause). Both Franco and Coupe concluded that the Fifth Amendment and the majority opinion in Kelo require meaningful judicial review. Kaur now joins them.
Thus, the Times editorial is 180 degrees off the mark: it is the Court of Appeals' abdication of the rule of law in Goldstein -- and not the the Appellate Division's opinion in Kaur -- which "conflicts with the relevant law," and which is is "completely out of step with eminent domain law."