Planning and Eminent Domain Issues in New York City

 

This month, in a 3-2 ruling, the New York State Supreme Court Appellate Division found that it would be unconstitutional for Empire State Development Corporation (ESDC), a New York State public authority with eminent domain powers, and working with Columbia University, to use its vested powers to benefit a “private elite education institution.”   

 

In a May 2009 decision, the New York State Court of Appeals approved the use of eminent domain for the taking of private property in Brooklyn’s Atlantic Yards.  The Court held that it was not their role to intervene in an agency’s decision-making, given the wide latitude in state law to determine blight. 

 

The Columbia decision written by Justice James Catterson, found that there was a difference between the Columbia case’s use of eminent domain as compared to such cases as Kelo v. New London (2005 U.S. Supreme Court decision).  In the latter, the U.S. Supreme Court upheld the use of eminent domain for economic development.  While in the latte, Justice Catterson found that the clear beneficiary was Columbia and not the public.  It was also determined that the University created in some measure, the blight attributed to the neighborhood. 

 

As part of the Columbia decision, there arose an important issue for planners, specifically on of ethics in the form of conflict of interest.  As the court stated, there was a “lack of sufficient neutrality” and the creation of “an inseparable conflict” when both Columbia and ESDC used same consultant to prepare the Environmental Impact Statement (EIS) supporting the New York City Council’s approval of the Columbia rezoning and the preparation of the ESDC’s blight study.  The Court concluded that there was reason to doubt the independence and objectivity of the consultant when it served two masters.   

 

What does this mean for city planners?  Certainly, a wait and see attitude could be taken.  It could be anticipated that Columbia will appeal the Court’s decision.  It could also be expected that the Atlantic Yard plaintiffs will ask the Court to take a “second” look at their decision, in light of the Columbia determination. 

 

And so, the relationship among environmental planning consultants, their clients and the decision makers grows more complicated. Keeping the dialog open will allow great things to happen. 

 

Always open to questions and discussions.  And with ending this year 2009, I would like to quote that unknown philosopher “We are both cursed and blessed by living in interesting times.”  To all, Seasons Greetings and a very Healthy and Happy New Year!

 

More to follow,

Mark.