Saturday, March 31, 2007

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,

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)


georgetheatheist said...

Why is it that a woman in the "Red" Chinese city of Chonqing (Wu Ping) can hold off the amassed forces of the State and their cohort developers from demolishing her property? Is Mao now spinning in the grave?... The picture was on the front page of the Times on Tuesday and, of course, on the great Queens Crap blog site...Can you believe this: in early March, the National People's Congress passed a historic law guaranteeing private property rights to China's swelling ranks of urban middle-class homeowners...The theory for her success is that she knows how to use the media...Invite the TV cameras in with some creative street theater...Hang a Grandma Shulman-looking dummy in effigy!...Pin the tail on a jackass Stavisky...Smash a John Liu pinata...Property owners of the Iron Triangle! Unite! You have nothing to lose but your hubcaps!

Anonymous said...

Here's my own theory based on the Kelo case:

When eminent domain is used to take private property so it can be replaced by a profit making private enterprise, the compensation calculated must have two parts: (1) just, fair, prompt compensation based on fair market value of the seized property; (2) the current owner of the seized property must be made a substantial and permanent partner in the future enterprise, sharing in all profits. The sharing must pass on to future generations, or be transferable via a will, as are any assets owned by a person.

Any dispute over the implementation would be fully protected by the courts.

The current owner must be permanently shielded from any liability stemming from lawbreaking on the part of the officials and those who initiated the project.

Without itemizing each legal protection, the current owner should end up as financially satisfied as though the transaction were conducted without the use of eminent domain.

They want my home to replace it with a large, luxury condo? They don't want to deal with me because they can do far better paying a few cheesy officials to compel me to end my ownership as though I were selling my property to just another homeowner?

Then there must be a companion law that compels the developer to treat the transaction exactly the same as though he were obtaining my property from another developer.

This same proposal must govern any taking of a "junkyard" to be replaced with a "Spa" or some such. The current junkyard owner must be compensated for the taking, and be a permanent, substantial partner in the new enterprise.

I wonder how these developers would view things if they had to see partners, not victims.

georgetheatheist said...

Property owner:...An unusual take on eminent domain for 21st century real estate conditions but would you want to "get into bed" legally with the likes of Tommy Huang?

Anonymous said...

To the always sensible "GeorgetheAthiest":

I sincerely believe that if my proposal were to be implemented, the likes of T. Huang would evaporate because they would be required to share the profits and the books would be open to the partner(s). Both would be like a crucifix to a vampire.

My new law would even have some retroactive protection. In the cases of "straw" buyers who are indeed acting on behalf of a developer, the original owner would be reinstated with the full compensation and partnership sharing as though there had never been a sham buyer. I would even add a penalty of an increase in the ownership for the offended original owner.

Anyone can improve on my idea. But, my idea is simply a statutory protection of the kind of deal an original owner could transact if the purposes of the purchaser were honestly revealed at the start.

But, again, I cannot imagine a Tommy Huang surviving (or even wanting to remain) in an honest fair-share environment.

georgetheatheist said...

Now you see folks why you are RIVETED reading the Queens Crap blog site - because of the stimulating discussions and ideas!

BTW, re the further adventures of Federal Judge Nicholas Garaufis who will be ruling on the Atlantic Yards/Ratner eminent domain case (see Crapper posting of March 10 "High-rise Chutzpah"), for whatever it is worth, on Thursday Garaufis sentenced to death Ronell Wilson for the murder of the 2 S.I. detectives, Andrews and Nemorin. This is the first death sentence in the NY area since the Rosenberg spy case in the 1950's.

Garaufis has ruled on highly-publicized cases before such as Vinny "Gorgeous" and the George (Beatle) Harrison guitar caper.

Anonymous said...

There were some people in Flushing who wanted the historic RKO Keith's Theater seized, via eminent domain proceedings, from that scurvy crook/developer Tommy Huang for a public theater project or such.

Why was that good use of eminent domain said to be
"difficult" or illegal?

Probably because Huang had Mc Laughlin, the Staviskys, Shulman and the rest in his pocket!