Reclaiming the promise of the judicial branch: toward a more meaningful standard of judicial review as applied to New York eminent domain law.

• Author: Franzese, Paula
• Position: Fordham Urban Law Journal Symposium

INTRODUCTION I. The New York Approach to Eminent Domain Law II. "Blight" as a Standardless Standard III. A Blind Deference and the Potential for Abuse: The New York Courts' Reluctance to Second-Guess Agency Determinations IV. The Legislative Prerogative: Statutory Reform Efforts in a Post-Kelo Nation V. Putting Some Muscle Back Into Judicial Review: Reinvention in New York Conclusion INTRODUCTION

New York courts have long embraced a posture of considerable judicial restraint when passing upon the coordinating branches' determinations of blight in eminent domain cases. Notwithstanding the U.S. Supreme Court's controversial 2005 pronouncement in Kelo v. City of New London, (1) after which forty-three states heeded the majority's invitation to refine their own laws to more strenuously protect private property rights, (2) New York's government-permissive statutory scheme and solicitous judicial response remains unchanged. As recently as the last judicial term, the New York Court of Appeals, in Kaur v. New York State Urban Development Corp. (3) and Goldstein v. Pataki, (4) concluded that the Empire State Development Corporation's (ESDC's) findings of blight must stand, unless patently irrational or baseless:

In Kaur, the court afforded wholesale deference to the legislative body's characterization of relevant parts of West Harlem as "substantially unsafe, unsanitary, substandard, and deteriorated," (6) notwithstanding the fact that those characterizations rested in considerable part on the machinations of the very enterprise--Columbia University--that would stand to gain from the blight designation. The blight characterization inspired a host of vociferous objections. (7) Nonetheless, the court deemed firm and immutable the premise that the judicial branch must not substitute its judgment for that of the legislatively designated agency.

Similarly, in Goldstein, the Atlantic Yards case, New York's highest court endorsed the condemnation of a residential community to make way for a "mixed-use development" that was proposed by private developer Forest City Ratner Companies (FCRC) for the benefit of that developer. (8) The exercise of eminent domain would allow for the construction of a sports arena to house the NBA Nets franchise. (9) The court of appeals noted that affected private property owners were "doubtless correct that the conditions cited in support of the blight finding at issue do not begin to approach in severity the dire circumstances of urban slum dwelling described" in earlier court precedent. (10) Still, the court chose to defer whole-wholesale to the agency's determination of blight, concluding that once the legislative agency has made its findings, absent a showing of corruption or irrationality, "there is nothing for the courts to do about it." (11)

New York's expansive approach to government's eminent domain powers is manifested in the generous two-fold classification process that its statutory scheme allows. Under the New York State Urban Development Corporation Act (UDCA), a government agency may justify a taking of private property if the property is determined to have fallen prey to "blight," or, in the alternative, if the land will be used in a manner that can support its classification as a "civic project." (12) Blight designations are readily affirmed, as courts routinely defer to agency determinations. In the rare instance that the agency is unable to demonstrate blight, the civic purpose classification serves as a catch-all, effectively assuring that the exercise of eminent domain will go forward. Kaur makes plain the extent of the New York judiciary's disinclination to enter the fray. (13) There, the court afforded the agency's blight designation wholesale deference while simultaneously declining to disturb its subsidiary determination that the taking for a private educational institution, Columbia University, qualified as a valid "civic project." (14)

This Article asserts that the New York model must be recast to more effectively balance and vindicate the various equities that pit private property rights against concerns for the greater good. In considerable measure, reinvention depends on the capacity of the courts to emerge as more meaningful participants in the colloquy between and among the coordinating branches of government. The Kaur case in particular provides an object lesson on the potential for abuse when agency determinations of blight are allowed to rest, unchecked, on the machinations of the enterprise that is advancing that designation in the first place.(15)

In the Kaur matter, Columbia University spent the better part of a decade quietly buying up considerable properties that would come to be within the scope of its proposed expansion, only to then allow those properties to fall into disrepair. (16) As the New York Appellate Division noted angrily, "Manhattanville or West Harlem as a matter of record was not in a depressed economic condition when EDC and ESDC embarked on their Columbia-prepared-and-financed quest." (17) Specifically, after purchasing or acquiring control of the properties in the designated area--vacating seventeen buildings and more than half of the tenants---Columbia let water infiltration conditions deteriorate, building code violations persist, and garbage and debris remain in certain buildings. (18) In turn, the decay of those premises was used to substantiate the designation of blight. (19)

The appellate division ruling in the Kaur case certainly appreciated the irony of such a result. In what the court perceived to be evidence of agency bias in favor of Columbia, the court observed that the ESDC delayed making an inquiry into the substandard conditions in Manhattanville until well after Columbia obtained control over the properties. The court found more evidence of agency heavy-handedness in the ESDC's authorization of a special methodology, slanted in Columbia's favor, for determining blight. (20) The court made plain its displeasure: "Even a cursory examination of the study reveals the idiocy of considering things like unpainted block walls or loose awning supports as evidence of a blighted neighborhood. Virtually every neighborhood in the five boroughs will yield similar instances of disrepair...." (21) Still, on appeal, the court allowed the blight designation to stand. (22)

If the public trust is to be upheld, a more meaningful standard of judicial review must be applied to New York's eminent domain process. Part I of this Article sets forth the relevant doctrinal and procedural predicates helpful to an assessment of such a possibility. It examines the mechanisms by which New York government agencies must abide when exercising the power of eminent domain. Further, it introduces the relevant provisions of New York's Eminent Domain Procedural Law (EDPL) (23) as well as the UDCA, and sets the framework for a comparative approach. Part II explores the devolution of the blight designation in New York into a standardless standard. Against this backdrop, Part III critically considers the New York courts' reluctance to second-guess state agency determinations of blight. It examines the potential for abuse that a posture of wholesale judicial deference creates. Part IV gleans lessons learned from other jurisdictions, as courts and legislatures have exercised their prerogative in response to Kelo's invitation to impose public use requirements that are more stringent than the federal baseline. Finally, Part V sets forth a proposal for reinvention in New York, whereby a more meaningful standard of judicial review might be applied when courts evaluate the propriety of legislative and agency determinations of blight and civic purpose.

1. THE NEW YORK APPROACH TO EMINENT DOMAIN LAW

   New York's eminent domain laws stand alone, representing a broad grant of takings authority to various enabling agencies. Despite the statutory requirement that a showing of "blight," or alternatively "civic purpose," be established by the given agency to justify the taking, those classifications themselves are broadly inclusive. Courts, in turn, hesitate to second-guess the agency determinations and abide, instead, by a posture of generous deference to government prerogative.

   Certainly, as compared to other states' protocol in a post-Kelo world, New York's eminent domain law is anachronistic. (24) The mechanism in place in New York to permit the taking of private property for public use simply requires an easily satisfied showing of blight or civic purpose. The New York protocol significantly limits the capacity of affected landowners to push back against the government's takings powers, affording affected parties only thirty days to seek judicial review, or lose that right. (25)

   New York's government-solicitous approach to takings is peerless. While requiring that notice be published so that interested landowners might have an opportunity to object at public proceedings, it was not until 2005 that the condemning agency was required to provide actual notice to those individuals directly affected by the project. (26) As noted, if affected parties fail to seek judicial review within the prescribed thirty-day window, they are essentially estopped from challenging the condemnation. (27) Moreover, as a predicate to seeking judicial review, interested parties must first attend the public hearing and voice their concerns. (28) The scope of judicial review is limited to the objections made at the hearing. (29)

   New York's swift and somewhat lopsided approach to justice in eminent domain matters may be a product of the specific needs of its fast-moving metropolis, which is rightly deemed a global center of commerce, education, and the arts. (30) As the issue was presented in Kaur, the undoubtedly public purpose of education is particularly vital for New York to maintain its status as an internationally-renowned and important center of higher education and academic research...