JURIST Guest Columnist Nathaniel Chiaravalloti, St. John’s University School of Law Class of 2014, is the author of the second article in a 10-part series from the staffers of the Journal of Civil Rights and Economic Development. Chiaravalloti discusses the negative consequences of the government exercising eminent domain in New York City …

Our nation’s collective indifference to the effects of gentrification, the separation by neighborhood of people based on race, ethnicity or class is well known. The “not in my neighborhood” mindset, where homeowners place their property values over the well-being of the community, is common. It is so much so that many state and local governments have begun taking affirmative steps to further the gentrification of cities and neighborhoods, and one of the most alarming steps comes in the form of economic redevelopment of poorer and more vulnerable neighborhoods. Particularly in crowded urban centers, available prime real estate has diminished to the point where urban planners and politicians are electing to simply bulldoze and rebuild neighborhoods than invest in their revitalization.

This issue has become more real for the people of New York City, where it was once the case that the government could use its constitutional authority to take property from private owners for public works, such as highways or water treatment facilities, but today, the city’s takings authority has expanded. It has grown to include public/private partnerships where private capital drives investment in urban renewal projects. In New York City, among other places, over the past few years, private landowners have been forced to sell their property through the state power of eminent domain. Unlike the past, however, these landowners were not displaced to make room for a new highway, but instead for building projects like the Barclay’s Center in Brooklyn and the northward expansion of Columbia University in Manhattan. And in both of these building projects, those who were displaced were private landowners of modest means, who saw their neighborhoods declared “blighted” by the government agency charged with authorizing these takings.

The US Supreme Court held in Kelo v. New London that public/private partnerships are within constitutional authority to use eminent domain to take land for a “public use” or related public good. Specifically, the government can take land from one private owner for “fair” market price, and give it over to another private party to redevelop. However, Justice Anthony Kennedy’s deciding vote came with a concurring opinion, wherein he voiced concern over the possibility that favoritism in local government, unfair dealings or other corruption might arise in such public/private partnerships. His concurrence turned out to be prophetic, as some of the very ills about which he warned came to the attention of the New York State Court of Appeals in the case of Kaur v. New York State Urban Development Corporation, also known as the Columbia University Takings case.

The Kaur case raised two questions. First, whether conflicts of interest between Columbia University and the state regulators, such as retaining a mutual consultant for a “blight study” constituted unfair favoritism. And second, whether Columbia University’s willful neglect of the surrounding area over a period of nearly a decade, which led to the whole area being declared “blighted,” constituted bad faith. Those questions were ultimately disregarded by the New York Court of Appeals, which instead considered the case only through the lens of the campus expansion being a “public good.” Therefore, I propose a more precise judicial test that is mindful of Justice Kennedy’s concerns to protect the proverbial “little guy” in public/private takings cases by taking into account evidence of bribery, favoritism or bad faith on the part of the private developer, or by the government agency, which authorized the taking. By adding a layer of judicial oversight to public/private partnerships, such partnerships would avoid improper behavior. Furthermore, offering legal recourse to those aggrieved by the taking process will help make sure that only those takings that are free of bad faith, favoritism or bribery will be allowed to proceed.

The real effect of decisions such as Kaur is that formerly affordable neighborhoods are demolished or remade into something entirely different. Those lucky enough to avoid the taking find their property values increasing, which forces people of more modest means away from these neighborhoods and into poorer neighboring areas. Worse still, while people forced out are paid “fair market value” for their property, it is almost always the case that their property becomes exponentially more valuable after they have relocated, which could rightly strike many as being unfair to the outgoing owner.

The end result, for citizens of the perpetually crowded New York City, is that there are fewer neighborhoods where working people can afford to live. And as those neighborhoods become more crowded, the standard of living decreases with it. Instead, with takings-aided gentrification, we get shiny new stadiums and beautiful new campuses, which no doubt benefit some, but fail to provide a public benefit to the vast majority of New York citizens. We are choosing to help some to the detriment of others. If we choose to turn a blind eye to the problem, where does it stop, especially in cases where there is a conflict of interest or favoritism shown to the developer by the government authorities? Ideally, it would stop with the implementation of judicial review over public/private takings. By creating strong incentives for good behavior by developers, not only would vulnerable neighborhoods be afforded better protection, but such projects could move forward with less contentiousness than the cases cited here. Finally, the trappings of a convenient quid pro quo between developers and the state would be replaced by the watchful eye of the judiciary, ensuring the fairest and most just outcomes in future takings cases.

Nathaniel Chiaravalloti graduated from Iowa State University in 2008 with a degree in political science. He also served with Teach for America. Chiaravalloti has interned with the The New York State Appellate Division.

Suggested citation: Nathaniel Chiaravalloti, Some Real Effects of Eminent Domain in New York City, JURIST – Dateline, Sept. 24, 2013, http://jurist.org/dateline/2013/09/nathaniel-chiaravalotti-eminent-domain.php.