In a City Council hearing this week I pointed out something our politicians already know: New York has an eminent domain industry and it's thriving.
The Fifth Amendment of the U.S. Constitution, which protects private property from being taken by eminent domain, says that property can only be taken for "public use." And while the language of the constitution remains the same, the interpretation has changed.
Once upon a time, "eminent domain" meant private property could only be taken for public use, for things such as roads or public parks. Now, it is possible for to take property from one private owner and give it to another — if public officials endorse that the shift will be for the "public good." Needless to say, the condemnation industry is busy.
In 2005, the United States Supreme Court upheld interpretations of eminent domain used for urban redevelopment schemes that force changes in private ownership in the name of "public good." The Castle Coalition, a project of the Institute for Justice, has startling before-and-after statistics showing that since Kelo v. City of New London there has been a several-fold increase in new condemnations and new proposals of eminent domain nationwide.
This is a flood of private commercial development. In testimony before the New York Senate Judiciary Committee, the Castle Coalition offered that New York has the "unfortunate distinction" of being one of the "very worst states in the country in abusing the power of eminent domain."
In New York, eminent domain can be conducted by obscure agencies where accountability isn't transparent. Too few citizens understand Governor Spitzer's responsibility for the persisting political purchase Atlantic Yards has had on its peculiar life. Most know little about the Urban Development Corporation, doing business as the Empire State Development Corporation, which frequently operates through the creation of lesser-known subsidiaries.
Most don't know that a private owner who covets the property of another can, outside the scrutiny of the public eye, start the condemnation process by writing a check to the self-funding government agency — to finance costs, including government staff salaries — so that agency will put together materials advancing the condemnation. In that vein, Columbia University, interested in acquiring a swath of West Harlem, wrote a $300,000 starter check to ESDC in 2004, years before any public hearings.
Eminent domain is often preceded by the notion that someone partaking in the acquisition process sees "blight." And blight, if it is not readily in the imagining eyes of beholders, is something that those pursuing an eminent domain taking of property can create. They can do this by various means, including the "threat" of eminent domain.
As seen particularly with Columbia and also with Atlantic Yards, the threat of eminent domain is used quite as destructively as eminent domain itself. This is done even when there has been no public vote or decision to use eminent domain. In July 2004, Anne Whitman wanted to keep the historic building she had owned for 35 years, but Columbia wrote "the nature and scope of the current development plan make that impossible." Thirty-seven threatened neighborhood owners sold to Columbia even though eminent domain has never been authorized.
One reason eminent domain is now being manipulated by powerful private entities such Columbia University and Forest City Enterprises, run by developer Bruce Ratner, is that they feel confident that when they initiate the process, they will be the recipient of property taken. That is because bids or effective bidding is not being required.
It is not in the industry's interest to depict with neutral accuracy what eminent domain will bring — including environmental impacts. The expensive brochures, full of customary pretty pictures and selectively chosen "facts" about proposed projects, cannot be excused as more puffery.
The tools that wrest ownership from others do harm. Shunning transparency, Columbia, like Mr. Ratner, collects gag orders forbidding any sellers to talk even to family members. Meanwhile the industry sidesteps process and public reviews such as the Uniform Land Use Review Procedure ("ULURP").
Though eminent domain is supposed to be permissible in pursuit of the "public good," condemnation is pursued even when local communities don't concur that there is such "public good." Neither the Columbia expansion nor Atlantic Yards would be proceeding as planned if local community boards were listened to.
Nothing as staggering as Columbia's takeover of West Harlem would be allowed were it another institution in another neighborhood, just as nothing comparable to Atlantic Yards would have been accepted in a Manhattan neighborhood like Greenwich Village.
That doesn't mean that neighborhoods better represented and closer to the seats of power are safe from eminent domain abuse. The industry will continue to push the envelope as far as it respectively can. What transpires in brownstone Brooklyn and West Harlem will pave the way for abuse in the neighborhoods of Lenox Hill or Gramercy Park.
Mr. White, a real estate development, housing, and public finance attorney, holds a masters degree in urban planning.