The Second Circuit has rejected the appeal of homeowners contesting the right of New York to taken their homes under eminent domain authority to give to private developers. It is a repeat of the controversial use of eminent domain in Connecticut in the Kelo case — where the Supreme Court narrowly uphold the use of the power and rejected constitutional challenges. For those of us who believe that Kelo was wrongly decided, this case could test the matter before a newly reconstituted court.
For the full disclosure, I have testified in Congress against the Kelo decision.
In the New York case, the Second Circuit rejected challenges to the use of eminent domain to make way for a $4 billion, Frank Gehry-designed project needed to bring a new arena for the NBA’s Nets to Brooklyn.
The Court dismissed complaints that it was forcing owners to accept compensation that they did not want to accept or viewed as woefully inadequate: “For affected property owners, monetary compensation may understandably seem an imperfect substitute for the hardships of dislocation and the loss of a home or business.
The destruction of their homes will make way for more “valuable” private homes and businesses, including 16 skyscrapers, an 18,000-seat arena for New Jersey’s basketball franchise and thousands of apartments. It was a huge windfall for Nets principal owner Bruce Ratner and supported by Mayor Michael Bloomberg.
Bloomberg may regret using this authority if he decides to run for president. This follows his equally unpopular support for legislation to restrict or regulate private ownership of devices that can detect radioactive, chemical, or biological dangers in his city. Click here
There is no question that the development would bring in more money for the city and help this sports franchise. But that is not the point. When the government can start to bulldoze homes to make way for more valuable citizens under eminent domain, it puts us on a very slippery slope toward majoritarian abuse. Eminent domain should be confined to public uses, not simply favoring well-heeled or more powerful citizens. What happened in New London, Connecticut in Kelo was a national disgrace. The city torn down homes that families did not want to sell at any cost — one home was built by the father of a resident and held immeasurable personal value.
Justice Chase (not long after the Bill of Rights was written) rejected this type of claim:
“An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority … . A few instances will suffice to explain what I mean… . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it.” Calder v. Bull, 3 Dall. 386, 388 (1798) (emphasis deleted).
Yet, it could be a difficult appeal for the homeowners. Sandra Day O’Connor actually voted the right way in Kelo, so Alito’s addition will not make a difference. Kennedy, to my everlasting amazement, voted to support New London. Someone would have to switch sides which is unlikely due to the fact that Kelo was handed down in 2005.
For the full story from New York, click here