And Now Some Thoughts on New York’s Eminent Domain Procedure

July 7, 2009

Both the Fifth Amendment to the U.S. Constitution and Article I, Section 6 of the New York State Constitution provide that “[n]o person shall be deprived of life, liberty or property without due process of law.” In Kelo v. New London the Supreme Court held that the “public use” requirement is met by mere economic development, a threshold that has been denounced by many as too low. Considering the reaction provoked by the Kelo decision, it may not have the far-reaching consequences that some have feared, as state legislations respond to public outcry with statutory eminent domain schemes that limit state eminent domain power more strictly than the maximum constitutionally allowable. New York’s Eminent Domain Procedure Law Section 302 requires that “at all stages prior to or subsequent to an acquisition by eminent domain of real property necessary for a proposed public project shall make every reasonable and expeditious effort to justly compensate persons for such real property by negotiation and agreement.” This is the maximum to which the eminent domain power may be implemented by government, since the Takings Clause of the Fifth Amendment requires any takings of property to be for public use. However, there may be something to be said about statutory schemes such as New York, which still permit eminent domain powers that may seem draconian at first blush. As Nasim Farjad noted in an article published in the Fordham Law Review in 2007:

Proponents of New York’s current EDPL note that although New Yorkers have benefited greatly from revitalization projects throughout the state, especially in New York City, many are unaware or have forgotten that without the use of eminent domain, key areas of New York City may not have thrived to allow citizens to enjoy the fruits of such projects. Supporters of New York’s eminent domain practices, such as developers, whose development projects could face many obstacles if new laws are passed, may take comfort in using the many successful revitalized areas around New York, most notably within New York City, to demonstrate why New York’s public use requirement should not be redefined to prohibit economic development takings.

The eminent domain takings that transformed Times Square provide an example of the power of eminent domain to revitalize key areas of New York City. The projects, which were designed to rid the area of rampant crime, social problems, and physical blight, did just that – they successfully revitalized thirteen acres of land in Times Square. In its brief in support of the respondents in the Kelo case, the City of New York wrote about the success of using eminent domain in Times Square, which resulted in the land “in and around Times Square [being] reborn as a tourist-friendly destination that, in the 2003-2004 season, drew an estimated 11.6 million people to the Broadway shows in that neighborhood, while the area west of Times Square has since become a new residential neighborhood.” However, the Times Square redevelopment project has done more than attract tourists to the area. According to a 2007 economic impact report released by the Times Square Alliance, the Times Square revitalization has resulted in the area generating outstanding increases in tax revenues – $ 1.1 billion in annual tax revenues for New York City and $ 1.3 billion in annual tax revenues for New York State. The Times Square revitalization’s impact on jobs in the area is even more impressive. According to the Times Square Alliance report, “While Times Square represents only 0.1% of the City’s land area, 5% of the City’s jobs are located in Times Square.” 76 Fordham L. Rev. 1121, 1159-1160

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