The Wall Street Journal reports on another impending case of eminent domain abuse arising out of the planned move of the New Jersey Nets to Brooklyn:
In Goldstein v. New York State Urban Development Corporation, residents and business owners are challenging the state’s use of eminent domain to condemn private property in a Brooklyn neighborhood for the benefit of a private developer. Spawned by developer Forest City Ratner, the “Atlantic Yards” project would build a new venue for the New Jersey Nets, along with office towers and apartment buildings.
According to the state and developer, this qualifies as a “public use”—the designation required to justify the seizure of private property under the law. Once limited to public projects like roads or bridges, “public use” has become an evolving legal concept that considers assorted “public benefits” provided even in a private development. Under that standard, nearly any new building project would qualify if it could be judged more appealing than current occupants of the property.
That’s the same slippery legal slope that former Justice Sandra Day O’Connor warned about in her dissent in the misbegotten 5-4 Kelo v. City of New London decision in 2005. Kelo is the reason this case is now in state court. The suit was first filed in federal court, but after Kelo the Second Circuit Court of Appeals denied the federal eminent domain challenge. The issue then moved to the state courts, where many eminent domain cases have had success—though not yet in the Empire State.
Article I, Section 7 of the New York constitution says private property shall not be taken for public use without just compensation. Meanwhile, through a series of incentives, the state government has encouraged cities to create “redevelopment zones,” aligning them against the interests and property rights of their own residents.
In the wake of Kelo, some 43 states have limited the ability of the state and local government to make such “takings.” Other states, like New Jersey, have seen stricter standards for eminent domain actions implemented through the courts. But New York is a draconian holdout. The Brooklyn case offers the courts a chance to tell the political class and its developer friends that they can’t trample over private property rights.
Given the business and political interests involved in bringing an NBA team to Brooklyn, though, I wouldn’t be optimistic.