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Eminent Domain Revisited

by Mark Berkey-Gerard, Dec 12, 2005
 


Three proposed development projects in NYC that may involve the condemning of private property: Columbia University expansion, Atlantic Yards project in Brooklyn, new Mets stadium in Willets Point, Queens.

Joy Chatel fears she will lose the house that has been her life for decades.

The four-story brick building on Duffield Street in Brooklyn serves as her home, a classroom where she home schools her seven grandchildren, and a business where she operates a hair salon.

Under the city’s plan to rezone and develop downtown Brooklyn, approximately 130 residences and 100 businesses, including Chatel’s, would be condemned. The city says the plan to replace them is a key element in a larger strategy to retain jobs that are leaving for New Jersey and elsewhere – and that it will ultimately benefit the residents of Brooklyn and the entire city.

Chatel argues there is more at stake than her private property. She and several other building owners in the area say that their houses are historic treasures where slaves found sanctuary as part of the “underground railroad,” a claim the city disputes.

“Oral history is all we have to prove there was an underground railroad,” she told the Daily News. “It’s not like they have a neon sign outside.”

Related Articles:
- Eminent Domain Revisited
- Eminent Domain Benefits Developers, Not the Public
- Eminent Domain is a Tool, Not a Conspiracy

From The Community Gazette:

- Columbia Expansion and Eminent Domain
- The Battle Over the Iron Triangle
- Life in the Atlantic Yards Footprint

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In New York City, the government's power to take over private property -- eminent domain -- is a factor in so many pending development projects that the one involving Joy Chatel’s home is actually among the least-known current battles.

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In Prospect Heights, Brooklyn, the real estate developer Forest City Ratner Companies has a proposal to take over private homes and businesses and replace them with the Atlantic Yards project, a basketball arena, thousands of condos, and 16 towers.

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In upper Manhattan, Columbia University is considering eminent domain as an option in its efforts to expand its campus.

And in Willets Point, Queens, the city is looking to replace a 13-block area that is home to scrap metal yards and auto shops with a waterfront shopping district to complement a new stadium for the New York Mets.

New York City’s landscape has been remade over and over again, and in the process hundreds of thousands of New Yorkers have lost their private property so that the government can build roads, bridges, public housing, parks, playgrounds, and hospitals.

The concept of eminent domain – and debate surrounding the practice - dates back to the founding of the nation.

“Eminent domain means the power of the crown over his or her domain,” said Dwight Merriam, author of the book Eminent Domain Use and Abuse. “The theory is that the government really owns all of the property and can take it back whenever it wants.”

The nation’s founders tried to address the issue in the Fifth Amendment to the U.S. Constitution, which guarantees citizens “just compensation” when private property is taken for “public use.”

But what exactly is a “public use”?

Until the case of Berman vs. Parker in 1954, the Supreme Court ruled that it was for such clearly public physical structures as bridges, highways, schools, and train tracks.

Today, in an era when government and private developers often work closely with one another, the term “public use” is used for sports stadiums, corporate headquarters, office buildings, museums, and even shopping malls.

NEW YORK’S EMINENT DOMAIN POWERS

In New York State, eminent domain can be used to remove areas of “blight” – which means deteriorating, vacant, or obsolete buildings or even oddly shaped parcels of land. Historically, the courts and lawmakers have used the term “blight” rather liberally.

For 40 years, “master builder” Robert Moses, made use of the power to level entire neighborhoods for projects like the West Side highway, Lincoln Center, and the Triborough Bridge

An entire downtown neighborhood, including a string of small electronics shops known as "Radio Row," was demolished to make way for the World Trade Center.

In the 1980s, the city and state condemned property in Times Square to rid the area of sex shops and other abandoned buildings. Currently, on 43rd Street, the New York Times is building a new headquarters on a property obtained through eminent domain. (Read an article about efforts to remake 42nd Street over the last 50 years.)

In 2001, the state took over several buildings on Wall Street in order to make way for an expansion of the New York Stock Exchange, an idea which never became a reality.

And recently in Harlem, a dozen businesses were demolished to make way for a Home Depot.

THE KELO vs. NEW LONDON CASE

The issue of eminent domain gained a new level of attention last summer when the United States Supreme Court ruled that the government could use eminent domain to take away private property and then sell it to a private developer.

In the case, known as Kelo vs. New London, the court ruled in a 5 to 4 vote that the city of New London, Connecticut could take the property of 15 homeowners for the purpose of economic development. The city plans to transfer the property to developers who will build office space, a hotel, housing, and a riverfront esplanade.

The Kelo case has sparked new debate among legal and planning experts. (Read What the Supreme Court Ruling Means to NYC.)

Some say that while eminent domain is appropriate to build schools or hospitals, it should not benefit private developers, because it can too easily abused.

“We never hear that eminent domain should be used to take a Hyatt and build mixed-income housing,” said Susan Fainstein a professor of urban studies at Columbia University. “It is always about taking property away from poor people and give it to someone who is much better off.”

(Read Eminent Domain Benefits Developers, Not the Public by Susan Fainstein.)

Others say that if a project produces tax revenue and jobs, economic development can be considered legitimate “public purpose.”

“We shouldn’t think that these projects are `bad’ just because they are the work of private developers,” said Jerilyn Perine, who served as housing commissioner under Mayor Michael Bloomberg.

(Read Eminent Domain is a Tool, Not a Conspiracy by Jerilyn Perine.)

BACKLASH AGAINST EMINENT DOMAIN

Concern over the Kelo case has also inspired a flurry of legislation at the national and local level.

In Congress, a bill, dubbed the “Private Property Rights Protection Act of 2005, has already passed the House and is awaiting a vote in the Senate. It would withhold federal aid from states that Congress believes abuse eminent domain.

In New York, there are several bills being considered in Albany, including a package of legislation drafted by Assemblymember Richard Brodsky which would slow down local eminent domain proceedings, create an ombudsman to oversee the use of the law, and require 150 percent of market value be paid for private property that the government takes over. This week, the New York City Council will hold hearings on the subject.

And recently opponents of eminent domain claimed victory when the U.S. Court of Appeals ruled that the city of Port Chester, New York failed to properly alert a businessman of his right to challenge an eminent domain decision before the government seized his four buildings to make way for a convenience store. The court’s decision, some said, was a warning to local governments who may be tempted to take private property without properly notifying the people who own it.

THREE CURRENT EMINENT DOMAIN PROJECTS IN NEW YORK CITY

While the experts debate how eminent domain should be used, residents and businesses in neighborhoods where it is being considered struggle to preserve the future of their communities.

Atlantic Yards and Prospect Heights, Brooklyn

In December 2003, developer Bruce Ratner, along with Mayor Michael Bloomberg and Governor George Pataki, unveiled plans for a massive project in downtown Brooklyn, known as the “Atlantic Yards.” The latest version of the plan would build a Frank Gehry designed basketball arena for the New Jersey Nets and 16 skyscrapers with office space and 7,300 apartments.

The Brooklyn skyline as it looks today (left) and as it would look after the Atlantic Yards project (right) The Williamsburg Savings Bank in middle of image.

In order to acquire the 22 acres of land needed for the project, New York’s Empire State Development Corporation is planning to use the government’s power of eminent domain to condemn two parcels of land.

Opponents of eminent domain say that the state would take over approximately 53 properties. Local groups, which oppose the plan, say more than 330 residents, 33 businesses with 235 employees, and a 400 person homeless shelter will be displaced by the project.

And Daniel Goldstein, who works for the group Develop Don’t Destroy and lives in the area of the proposed development, warns that the definition of “blight” could apply to any neighborhood in the city.

“On any six square block in this city you will find a property that might be `dilapidated’ or `structurally unsound’ or `vacant,’ and all throughout the city nearly every property could be considered `economically underutilized,’” said Goldstein.

However some in the area, including many local officials, have praised the development, in particular for the "community benefits agreement" with neighborhood representatives that promises that 50 percent of the 4,500 rental apartments will go to low and middle-income residents, with 10 percent of these set aside for seniors. The project also sets aside 35 percent of the jobs for minority workers and another 10 percent for women.

But even some supporters of the project, like Assemblymember Roger Green, question the use of eminent domain.

“Under the definition of blight, as related to poverty or environmental degradation, this definition is not related to Prospect Heights,” Green said at recent state hearing.

Read the commentary Life in the Atlantic Yards Footprint by Daniel Goldstein.

Columbia University Expansion, Manhattanville

Columbia University plans to build a new campus in Manhatanville.

Last summer, Anne Whitman, who runs a moving company out of her building on Broadway and 129th Street, received a letter from Columbia University informing her that the institution planned to build a biotech research center where her business stands.

Columbia offered to help Whitman find a single-floor building outside of Manhattan; she rejected the offer.

“Since then,” Whitman said, “it has been all out war.”

Columbia University plans to spend $5 billion over the next 25 years to build a new campus in upper Manhattan. The 18-acre complex would stretch from West 125th Street to West 133rd Street between 12th Avenue and Broadway and would house biotech research facilities, a building for its art school, student and faculty housing, and administrative buildings.

The university says the campus will create 14,500 permanent jobs in the area.

Columbia hopes to convince area residents and businesses that there is a mutually acceptable resolution. Failing that, it has suggested that the state could use eminent domain to transfer control of these properties.

However, local businesses, community board members, and students at Columbia University oppose the plan and criticize its approach to the negotiations with the community.

For some of the area’s landowners, the talk of eminent domain has poisoned negotiations.

“They say ‘deal with us now or deal with the state later,’” said Whitman, who also sits on Community Board Nine. “It’s like having a gun to your head.”

Read Columbia University’s Expansion and the Threat of Eminent Domain by Joshua Brustein.

Willets Point, Queens

The area of Willets Point, Queens may become a shopping area next to a new Mets Stadium.

For decades, city planners have had their eye on Willets Point, a 13-block area on a peninsula on the Flushing River that is home to scrap metal yards and auto shops.

In the 1960s, Robert Moses attempted to force out the local business owners to make way for the World’s Fair. In the 1990s, the New York Mets wanted to build a new stadium on the land. Recently, some have proposed a new stadium for the New York Jets football team or facilities for the now-defunct 2012 Olympic bid on the grounds. All of these plans failed.

Now, the city is determined to transform the area to include an attractive waterfront shopping and residential enclave, which would complement another proposed stadium for the New York Mets.

Although the city will not discuss the details of its plans at the current time, scrap metal yard owners fear that eminent domain may be used to move them out.

“Sounds to me like they’re going to pull a sneak attack,” said Richard Musick, president of the Willets Point Business Association.

There is little doubt that the area – which is riddled with large potholes and abandoned cars, and even lacks plumbing in some areas – will meet the definition of “blight.” And some local officials, like Councilmember John Liu expresses confidence that the owners “will be given fair compensation, and relocated, if necessary.”

But the scrap metal and auto shop owners say that it will be nearly impossible to find other neighborhoods that would welcome their businesses.

Read The Battle Over the Iron Triangle by Gus Garcia-Roberts for more.

Related Articles:

Eminent Domain: What The Supreme Court Ruling Means To NYC
Condemning (For) Private Businesses
New York as a College Town
Robert Moses Revisited  


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