On eminent domain

Letter to the Queens Tribune:

To The Editor:

It is settled law; government through eminent domain has the power, as indeed it should, to take private property for a public use and to pay just compensation. Traditional examples are schools, roads and government buildings.

The issue of late is the 5 to 4 decision of the U. S. Supreme Court in the Kelo case that equated economic development with public use. In short, private property for just compensation can be taken by government and turned over to a private, for-profit developer if it is done to enhance economic development.

The Kelo case generated much controversy-as indeed it should have-resulting in some jurisdictions not including New York City, pushing for legislation to prohibit such taking. The trouble with the concept of taking for allegedly economic purposes, apart from the speculative nature of a purported project, is that it often ignores the ugly reality that such projects involve private, for-profit entrepreneurs and all too often the result of unsavory back room political shenanigans, with the public effectively shut out of any meaningful say in the matter. Indeed, the financial particulars and taxpayer contributions are often purposefully obscure.

The Supreme Court tends to decide cases on a very narrow basis. I believe it would not take too much to have one or more of the five justices who supported the majority decision to distinguish the Kelo case and arrive at a different result.

I believe the Willets Pont matter would be just such a case. (EDC Begins Talks On Willets Point, Queens Tribune March 22, 2007) A recent study by Hunter College found there are some 225 businesses in Willets Point, employing more than 1,400 people. These are viable businesses that serve an important public need, support many families and pay taxes. That they do not deal in silk and lace is of course irrelevant. In short we are not talking about an economically depressed area, but in fact a vibrant one.

The notion these businesses should be thrown to the wind for a hotel, a convention center and more luxury housing because that is what will consume the majority of the area, is not only absurd, but downright stupid. Within walking distance of Willets Point are many hotels, so the notion that another hotel is an economic plus is without any probative value. Many millions of taxpayer dollars have been committed to an enlargement of the Javits Convention center, so another convention center would serve no legitimate purpose.

If the City wanted to put up solely public housing for the poor, it might have a point. But if we are talking for the most part about a hotel, a convention center and luxury housing, I do not think given the current economic status of Willets Point that the Kelo case would and should not be a precedent. In the absence of convincing hard evidence, not speculative, not from so called “ paid experts,” there is no basis to claim a right of eminent domain for an economic purpose, when the current economic base in Willets Point, is good. To the extent the area needs some cosmetic uplifting, taxpayer dollars should be utilized.

A Gucci store that sells merchandise for the rich does not serve any greater public need than a body and fender shop. Indeed, in a city that is increasingly accommodating to the rich and crowding out the poor and the middle class, I believe a body and fender shop is more important. Willets Point businesses should not in my opinion rely too heavily on help from local and citywide politicians whose constituency is often the real estate interests in this city. One hopes the Willets Point businesses band together and take legal action to oppose the taking of their livelihood on the dubious ground an economic purpose would be served thereby. I venture to guess that if those businesses contacted the law firm that represented the homeowners in the Kelo case, it might well be interested to represent them.

Benjamin M. Haber,
Flushing

Here is a link from No Land Grab about the eminent domain issue:

Eminent domain case gets serious consideration in court (but the press mostly passes)