On November 24, 2009 the New York Court of Appeals ruled 6-1 that it is lawful for the State to seize private property for use by private developers. This case involves taking, though eminent domain, private property to turn over to a private developer for the development of a sports arena complex including office buildings and rental apartment blocks. Apparently, a cornerstone of the use of eminent domain was the designation of the area in Brooklyn, known as Atlantic Yards as “blighted”. Yet, some of the property to be condemned includes condominium residential units valued at over $500,000. The claims of blight reportedly refer to the appearance of graffiti and the growth of weeds. It is possible that the definition of “blight” used for these purposes is much too broad. However, that is not something the Court can address. The Court, in its ruling, probably depended on the decision of the U. S. Supreme Court in the case of Kelo v. City of New London where private property was taken and turned over to the private development of a campus for Pfizer. In that case it would seem that the “public benefit” was an economic benefit to the community where, in the Atlantic case the “public benefit” appears to be removal of blight and the development of s sports arena.

Both the Atlantic and Kelo cases should create fear in the minds of all property owning citizens of the U. S. If private developers, through the use of lawyers capable of performing gold medal winning legal gymnastics can get the right to use eminent domain to take property for the benefit of those developers, then no one is safe anymore. Logic dictates that when the concept of permitting the State to take private property for a public benefit, no one involved in creating that legal right ever contemplated that eminent domain would be used for other than public projects such as governmental buildings, fire houses, police stations, public transit projects, hospitals, military installations and the like. It is understandable that Cities needed the right to re-develop areas that had become truly blighted. But, blight in this instance usually meant a substantial amount of dilapidated and/or vacant property where social as well as physical blight was present. However – an area with $500,000 condominiums – give me a break!

In the wake of the Kelo decision, many States enacted laws to make it much more difficult to use eminent domain to take private property. However, it was by no means universal. What is needed now is for the U S Congress to revisit the law and write a new law, covering Federal as well as State property takings so that eminent domain is confined to a true public purpose and not a trumped up one as in the case of Atlantic Yards and Kelo, which in the mind of this writer was one of the most poorly reasoned decisions of the Court, where the minority opinion should have been the law..

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